ORIGIN  AND  DEVELOPMENT 


OF 


UNITED  STATES  SE: 'ATE 


CLARA   KAN?TAtTKERR,  PH.D. 


ITHACA,  N.  Y. 

ANDRTJS  &  CHURCH 
1895 


IN  MEMORIAL 
BERNARD  MOSES 


THE 


ORIGIN  AND  DEVELOPMENT 


OF  THE 


UNITED  STATES  SENATE 


BY 


CLARA   HANNAH   KKRR,  PH.D. 


ITHACA,  N.  Y. 

ANDRUS  &  CHURCH 

1895 


JK  1 1 


COPYRIGHT,  1895, 

BY 
CLARA   H.    KERR. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

THE  FORMATION  OF  THE   SENATE  IN  THE  CONVENTION 

OF  1787, 1-14 

CHAPTER  II. 

EJECTION    OF    SENATORS    AND    ORGANIZATION    OF   THE 

SENATE, 15-37 

CHAPTER  III. 

THE  SENATE  AS  A  LEGISLATIVE  BODY. 

I. — Secret  Sessions, 38-40 

II.— Quorum  of  the  Senate, 40-48 

III. — Order  of  Procedure, 48-59 

IV. — Limitations  of  Debate, .    .  59-68 

V. — Appropriation  Bills, 68-80 

VI.— Party  Influences  in  the  Senate, 80-85 

VII. — Relation  of  the  President  and  Senate  in  Legisla- 
tion,      85-92 

VIII.— Relation  of  the  Senate  and  House  of  Representa- 
tives in  Legislation, 92-97 

CHAPTER  IV. 

THE  SENATE  AS  AN  EXECUTIVE  BODY. 

I.— Secret  Sessions, 98-103 

II. — Appointments, 104-135 

III.— Treaties, I35-T58 

CHAPTER  V. 
THE  SENATE  AS  A  JUDICIAL  BODY, 159-172 

CHAPTER  VI. 
CONCLUSION, 173-180 

LIST  OF  WORKS  CITED  WITH  DATE  AND  PLACE  OF  PUBLI- 
CATION,      181-184 


PREFACE. 


IN  the  following  study  an  effort  lias  been  made  to  trace 
the  development  of  the  United  States  senate  from  the 
time  that  a  second  house  was  first  proposed  in  the  con- 
vention of  1787  to  the  present.  In  this  discussion  espe- 
cial attention  has  been  paid  to  the  way  in  which  the 
senate  has  exercised  the  powers  granted  to  it  by  the  con- 
stitution, and  to  the  ways  in  which,  either  by  an  increase 
or  a  decrease  of  those  powers,  it  has  deviated  from  the 
purpose  of  the  framers  of  the  constitution.  In  doing 
this  the  three  functions  exercised  by  that  body,  legisla- 
tive, executive  and  judicial,  have  been  separately  treated. 

It  has  been  impossible  to  obtain  a  full  knowledge  of 
the  proceedings  of  the  senate  during  its  early  days,  as 
the  debates  were  not  reported  and  the  sessions,  for  some 
time,  were  held  in  secret.  Our  chief  sources  of  informa- 
tion regarding  the  period  are  the  "  Annals  of  Congress  " 
and  the  u  Senate  Journal."  These  are  supplemented  by 
the  u  Journal  of  Maclay,"  covering  the  period  of  the  First 
Congress,  and  the  writings  of  the  early  statesmen,  espe- 
cially those  of  Washington,  John  Adams,  Jefferson,  Ham- 
ilton and  Madison. 

The  same  difficulty  exists  throughout  for  the  execu- 
tive proceedings,  as  the  executive  sessions  are  still  held 
in  secret,  and  none  of  the  debates  have  been  made  pub- 
lic, except  in  the  few  instances  in  which  the  injunction 
of  secrecy  has  been  removed  from  them.  As  the  "  Ex- 
ecutive Journal  "  since  1869  has  not  been  published,  it  is 
still  more  difficult  to  obtain  an  adequate  knowledge  of 
the  executive  proceedings  since  that  date. 


vi  Preface. 

A  list  of  the  more  important  sources  of  information 
consulted  in  the  preparation  of  this  paper,  including  all 
those  cited  in  the  foot  notes,  is  given  at  the  end.  Fol- 
lowing established  precedents,  the  document  known  as 
the  "  Pinckney  Plan  "  has  several  times  been  cited,  al- 
though the  genuineness  of  that  document  is  now  seri- 
ously discredited. 

The  work  has  been  done  under  the  direction  of  Pro- 
fessor Moses  Coit  Tyler,  to  whose  suggestions  and  assis- 
tance I  am  much  indebted.  I  am  also  indebted  to  the 
Honorable  Henry  Cabot  Lodge  for  aid  while  making 
personal  observations  of  the  senate,  and  to  Mr.  A.  R. 
Spofford  for  help  while  using  the  Library  of  Congress. 

C.  H.  K. 

Cornell  University, 
Ithaca,  New  York, 

July,  1895. 


THE  ORIGIN  AND  DEVELOPMENT  OF 
THE  UNITED  STATES  SENATE. 


CHAPTER  I. 


THE  FORMATION  OF  THE  SENATE  IN  THE  CONVENTION 

OF    1787. 

THE  states,  in  adopting  the  articles  of  confederation 
which  created  a  government  ii'ii  'wliich  &U :  legislative 
power  was  vested  in  a  single,  house,  ha$,  departed  from 
nearly  all  of  their  traditions  of  gt>verrmient.  At  that 
time,  the  division  of  the  legislative  power  between  the 
house  of  lords  and  the  house  of  commons  was  considered 
an  essential  part  of  the  English  system  ;  and,  in  all  of  the 
colonies  except  Pennsylvania,  two  houses  had  been  devel- 
oped, and  were  provided  for  by  all  of  the  state  constitu- 
tions except  those  of  Georgia  and  Pennsylvania.  It  was, 
therefore,  but  natural  in  framing  a  new  form  of  government 
to  replace  that  of  the  articles  of  confederation,  which  had 
proved  inadequate,  that  a  legislature  of  two  branches  should 
have  been  thought  of.  Both  Randolph's  and  Pinckney's 
plans,  introduced  immediately  after  the  organization  of 
the  convention,  provided  for  two  houses  ;  and  two  days 
later  the  convention  decided,  without  debate,  Pennsyl- 
vania alone  voting  against  it,  in  favor  of  such  a  distribu- 
tion of  the  legislative  power.  I/ater,  however,  after  the 
arrival  of  the  New  Jersey  delegates,  who  wished  only 
the  amendment  of  the  articles  of  confederation,  the 
question  was  again  considered,  and  New  York  and  Dela- 
ware voted  with  New  Jersey  for  a  legislature  of  a  single 
branch. 


2  The  Origin  and  Development  of  the 

It  being  decided  that  there  was  to  be  a  second  house, 
the  convention  next  proceeded  to  determine  the  manner  in 
which  its  members  should  be  chosen.  During  the  colo- 
nial period,  in  the  royal  colonies  the  councillors  were  reg- 
ularly appointed  by  the  king,  and  in  the  proprietary  colo- 
onies  by  the  proprietor  ;  while  in  the  popular  colonies 
they  were  either  chosen  by  the  general  legislature,  as  in 
Massachusetts,  or  directly  by  the  voters,  as  in  Rhode 
Island  and  Connecticut.  In  the  formation  of  the  state 
constitutions  the  more  popular  method  of  election  of 
Rhode  Island  and  Connecticut  was  followed  by  most  of 
the  states.1 

Each  of  the  three  plans  submitted  to  the  convention, 
however,  pr-ovidecl  :fof  'a  [Secondary  election  :  Pinckney's 
for  an  election;  by  -the  lower -house,  Randolph's  by  the 
lower  house  i'rorir  'nomination's  made  by  the  state  legis- 
latures, and  Hamilton's  for  a  choice  by  electors  chosen 
by  the  people,  as  in  Maryland.  A  proposal  by  Mr.  Read 
of  Delaware  removed  the  choice  still  farther  from  the 
people  by  giving  to  the  executive  the  appointment  of 
senators  from  a  certain  number  nominated  by  the  indi- 
vidual legislatures.  This,  however,  was  too  monarchical 
to  meet  with  approval,  and  was  not  supported ;  though 
later  Gouverneur  Morris,  who  at  this  time  was  absent, 
went  still  farther  and  declared  that  he  was  in  favor  of 
the  simple  appointment  of  senators  by  the  executive. 

The  direct  election  of  senators  by  the  people,  proposed 
and  warmly  supported  by  the  committee  to  whom  the 
Randolph  plan  was  referred,  was  objected  to  on  the 
grounds  that  the  people  could  not  safely  be  entrusted 
with  the  power,  and  because  it  would  give  to  the  landed 
interests  an  undue  preponderance  ;  and  the  plan  adopted 
by  many  of  the  states  in  choosing  members  to  the  con- 
gress of  the  confederation,  namely,  choice  by  the  state 

1  Under  the  first  constitutions,  of  S.  C.  and  N.  H.  the  members  of 
the  upper  house  were  chosen  by  those  of  the  lower  ;  and  in  Maryland 
by  electors  chosen  by  the  people. 


United  States  Senate.  3 

legislatures,  was  agreed  upon,  it  being  held  that  the 
sense  of  the  people  could  be  better  collected  in  this  way, 
and  that  thus  the  most  distinguished  characters  would 
be  chosen.  It  was  also  pointed  out  that  this  method 
had  the  advantage  of  connecting  the  state  and  national 
governments. 

In  the  debates  over  the  formation  of  the  constitution, 
the  point  which  caused  the  most  discussion  was  the 
method  of  representation  in  the  two  branches  of  congress. 
Though  the  colonies  had  an  equal  voice .  in  the  con- 
tinental congress,  it  had  not  been  granted  without 
a  struggle,1  and  during  the  debates  over  the  ques- 
tion several  compromises  had  been  suggested.  That  of 
Sherman  of  Connecticut,  who  proposed  that  "  the  vote 
should  be  taken  two  ways ;  call  the  Colonies,  and  call 
the  individuals,  and  have  a  majority  of  both,"  2  was  a 
foreshadowing  of  the  plan  of  the  senate  and  house  of 
representatives. 

The  delegates  from  Delaware  had  been  forbidden  to 
vote  for  any  constitution  which  should  not  provide  for 
the  equality  of  representation  of  the  states,  and  there  were 
others  strongly  in  favor  of  that  plan.  Proposals  for  the 
representation  of  the  states  in  accordance  with  their  im- 
portance and  in  accordance  with  property3  were  not  well 
supported.  The  method  of  representation  for  the  lower 
branch  was  first  decided,  the  great  struggle  being  over 
the  plan  to  be  adopted  in  the  senate. 

The  possibility  of  different  methods  of  representation 
in  the  two  houses  was  evidently  in  the  mind  of  Dickin- 
son when,  in  the  course  of  the  discussion  over  the  method 
of  impeachment  of  the  president,  he  said  that  he  hoped 
that  each  state  would  retain  an  equal  vote  in  at  least  one 

1  Works  of  J.  Adams,  II,  499. 

2  Works  of  J.  Adams,  II,  499. 

3  Representation    in  the  state   legislatures    of   Massachusetts    and 
New  Hampshire  was  based  upon  this  principle. 


4  The  Origin  and  Development  of  the 

branch  of  the  national  legislature  ;x  but  it  was  Sherman 
of  Connecticut  who,  when  both  parties  seemed  bent 
upon  having  their  own  way,  proposed  granting  repre- 
sentation of  the  states  in  proportion  to  their  inhabitants, 
in  one  branch,  and  equal  representation  in  the  other.2 
His  proposition  was  well  supported  by  his  colleague,  but 
at  that  time  no  one  else  spoke  in  favor  of  the  plan.  It 
satisfied  neither  the  small  states  nor  the  large  ones,  and 
it  led  to  a  discussion  so  violent  that  at  one  time  there 
was  danger  of  the  convention's  dissolving  without  ac- 
complishing anything.  Dr.  Franklin  then  came  forward 
urging  the  necessity  of  compromise.  The  matter  was 
referred  to  a  committee,  who  reported  substantially  the 
plan  of  Sherman.  Many,  seeing  the  necessity  of  a  com- 
promise, though  by  no  means  satisfied  with  the  plan  pro- 
posed, supported  it ;  and  the  vote  when  taken  stood  five 
to  four,  with  one  state  divided.3 

All  agreed  that  the  senate  ought  to  be  so  constituted 
as  to  be  a  check  on  the  lower  house,  but  there  was  a 
disagreement  as  to  the  means  to  be  adopted  to  secure 
this  end.  Gouverneur  Morris,  having  in  mind,  doubtless, 
the  house  of  lords,  thought  that,  for  this  purpose,  dignity 
and  permanence  were  necessary.  He  therefore  wished 
to  have  the  second  branch  composed  of  men  of  large 
property,  an  aristocracy  who,  from  pride,  would  sustain 
consistency.  To  make  them  completely  independent,  he 
wished  them  chosen  for  life.4  Hamilton's  plan  embodied 
the  same  idea,  but  it  met  with  no  success,  for  the  people 
dreaded  above  all  things  the  creation  of  an  aristocracy. 
The  councils  of  the  colonies  had,  in  general,  been  com- 
posed of  the  men  of  the  most  wealth  and  importance  in 
the  colony ;  and  stood  in  social  rank  next  to  the 
governor,  especially  in  the  royal  colonies,  where  they  were 

1  Elliot,  V,  149. 

2  Ibid.,  V,  179. 

3  Ibid.,  V,  316. 
*Ibid.t  I,  475- 


United  States  Senate.  5 

appointed  by  the  king  during  good  behavior.  They  had 
constantly  been  objects  of  suspicion  ;  and  therefore,  in 
the  state  constitutions,  five  years  was  the  longest  term 
of  a  senator,1  while  a  majority  of  the  states  elected  their 
senators  annually.  In  the  convention,  the  length  of 
term  proposed  varied  from  a  life  tenure,  urged  by  those 
who  regarded  the  British  constitution  as  the  best  of 
models,  to  a  single  year,  a  plan  urged  by  the  New  Eng- 
land delegates,  and  especially  those  of  Connecticut,  who 
declared  that  their  constituents  would  never  consent  to 
give  up  their  annual  elections.  A  short  term  of  office 
was  urged  by  the  strong  states'  rights  men  also  ;  for  they 
feared  that,  if  the  term  of  service  were  long,  the  senators 
would  make  their  home  at  the  capitol  city,  and,  forget- 
ting their  dependence  and  becoming  alienated,  would 
neglect  the  interests  of  the  state  which  sent  them. 

At  first  the  term  of  office  was  fixed  at  five  years,2  as  a 
happy  medium  between  the  life  tenure  which,  it  was 
feared,  would  make  the  senators  regardless  of  the  wishes 
of  the  people,  and  a  shorter  term  which  would  not  be 
sufficient  to  secure  permanency  and  consistency  in  the 
legislative  business.  Later,  it  was  fixed  at  six  years, 
one  third  going  out  each  year.3  Rotation  was  first  sug- 
gested by  Mr.  Pinckey,  and,  when  proposed  later  by  Mr. 
Gorham,  met  with  no  opposition.  An  effort  to  intro- 
duce a  property  qualification,  which  existed  in  seven  of 
the  state  constitutions,4  failed ;  but  the  recognition  of 
the  greater  ability  required  of  a  senator  was  shown  by 
making  the  age  qualification  of  a  senator  thirty  years  ; 
and,  in  view  of  the  fact  that  they  were  to  have  an 

1  The  Maryland  senators  held  office  five  years  ;  Delaware's  three ; 
Virginia's  four  ;  New  York's  four. 

*  Elliot,  I,  451. 

3  Rotation  was  adopted  for  the  provisional  council  of  Pennsylva- 
nia in  the  "Frame  of  Government"  of  1782-3,  and  forthe  state  council. 
It  was  also  provided  for  the  senates  in  the  state  constitutions  of  New 
York,  Delaware,  and  Virginia. 

^  In  Mass.,  Md.,  Del  ,  N.  C.,  N.  J.,  N.  Y.,  N.  H. 


6  The  Origin  and  Development  of  the 

agency  in  the  formation  of  treaties,  the  term  of  citizen- 
ship required  was  fixed  at  nine  years. 

It  was  pretty  generally  agreed  that  the  duties  which 
were  to  be  assigned  to  the  senate  could  be  best  performed 
by  a  small  number.  Gouverneur  Morris  favored  three 
representatives  from  each  state,  for  he  thought  if  there 
were  but  two,  and  a  majority  a  quorum,  the  senate  would 
be  too  small  to  entrust  with  the  important  duties  which 
had  been  assigned  to  it.  This  number  was  objected  to 
on  the  ground  of  expense,  and  because  it  would  be  diffi- 
cult for  the  more  remote  states  to  send  so  many  ;  and,  on 
the  motion  for  two  from  each  state,  Maryland  alone 
voted  against  it.1 

It  has  been  said  that  a  long  term  for  senators  was  op- 
posed by  the  supporters  of  states'  rights  on  the  ground 
that  it  would  diminish  the  influence  of  the  states.  The 
same  reason  led  them  to  oppose,  though  unsuccessfully, 
the  voting  per  capita  instead  of  by  states,  and  the  pay- 
ment of  the  senators  out  of  the  national  treasury ;  the 
difference  of  opinion  on  all  these  points  being  due  to 
different  ideas  regarding  the  office  of  the  senate.  The 
states'  rights  party,  who  wished  the  senate  to  represent 
the  states,  advocated  their  payment  by  the  states  that 
they  might  not  become  independent  of  them  ;  while  the 
national  party,  who  wished  the  senate  to  be  representa- 
tive of  national  and  not  state  interests,  advocated  the 
payment  of  senators  from  the  national  treasury.  The 
national  party  prevailed,  and  the  payment  of  senators 
was  left  to  the  general  government.  A  proposal  to  fix 
the  salary  was  discarded  on  account  of  the  change  of 
values,  and  a  motion  which  provided  that  the  compensa- 
tion of  senators  and  representatives  should  be  the  same 
was  withdrawn  when  it  was  pointed  out  that  this  would 
be  unfair,  as  senators  would  have  to  remain  longer  from 
home  and  so  would  be  obliged  to  remove  their  families.2 

'  Elliot,  V,  356-357. 
2  Elliot,  V,  425-427. 


United  States  Senate.  7 

The  powers  which  the  senate  was  to  have  were  at  first 
but  vaguely  defined.  Thus,  Mr.  Randolph's  plan,  as 
first  submitted  and  as  amended  in  the  committee  of  the 
whole,  made  no  distinction  as  to  the  powers  to  be 
granted  to  the  two  houses.  The  Pinckney  plan  gave 
the  originating  of  all  money  bills  to  the  house  of  dele- 
gates, and  to  the  senate  the  sole  power  of  declaring  war, 
making  peace,  and  appointing  ambassadors  ;  while  Ham- 
ilton's, which  was  introduced  about  a  month  later,  gave 
to  the  senate  the  sole  power  of  declaring  war ;  of  advis- 
ing and  approving  treaties  ;  of  approving  or  rejecting  all 
nominations,  except  the  heads  or  chiefs  of  the  depart- 
ments of  war,  finance,  and  foreign  affairs.1 

Although  the  upper  house  of  every  state  except  Con- 
necticut, Rhode  Island,  and  North  Carolina  was  restricted 
by  its  constitution  from  originating  money  bills,  a  pro- 
posal in  the  early  part  of  the  convention,  before  the 
manner  of  representation  was  decided  upon,  to  limit  the 
United  States  senate  in  a  similar  manner,  was  negatived. 
Later,  when  it  had  been  decided  that  the  states  were  to 
be  equally  represented  in  the  second  branch,  it  was  pro- 
posed, as  a  compensation  to  the  large  states,  to  give  to 
the  first  branch  of  the  legislature  the  exclusive  right  of 
originating  "  all  bills  for  raising  and  appropriating 
money  and  for  fixing  salaries,"  and  to  forbid  the  senate's 
altering  or  amending  them  ;2  and,  though  some  of  the 
representatives  of  the  large  states,  among  whom  were 
Mr.  Madison  and  Mr.  Wilson,  declared  that  they  saw  no 
concession  in  this,  it  was  agreed  to  by  a  majority  of  two 
states.  This  decision  was  very  unsatisfactory  to  many, 
and  the  subject  was  again  brought  up  for  consideration. 
Those  who  were  in  favor  of  the  clause  as  it  then  stood, 
supported  it  because  senators  were  not  the  direct  repre- 
sentatives of  the  people,  and  because  it  was  feared  that 

1  In  several  of  the  states  the  upper  house  could  not  even  amend 
money  bills.     It  was  so  in  S.  C.,  Md.,  Va.,  N.  J. 

2  Elliot,  V,  274. 


8  The  Origin  and  Development  of  the 

the  senate  would  sit  constantly,  and  so  be  able  to  mature 
plans  during  the  recess  and  force  them  upon  the  house.1 
Another  reason,  according  to  Colonel  Mason,  for  restrict- 
ing the  upper  house  was  that  "  it  could  already  sell  the 
country  by  means  of  its  treaties." :  It  was  finally  agreed 
to  amend  the  clause  so  that  it  would  read  :  "  All  bills  for 
raising  revenue  shall  originate  in  the  House  of  Repre- 
sentatives, but  the  Senate  may  propose  or  concur  with 
amendments."3 

One  of  the  greatest  defects  in  the  government  formed 
under  the  articles  of  confederation  was  the  lack  of  an 
adequate  war  power  ;  and,  as  before  noticed,  in  the  plans 
of  Pinckney  and  Hamilton  the  power  of  declaring  war 
was  entrusted  to  the  senate.  Pinckney  urged  that  the 
senate  would  be  the  best  repository  of  this 'power,  as  it 
would  be  better  acquainted  with  foreign  affairs,  was  repre- 
sentative of  the  states,  and  was  a  smaller  body.  Moreover 
it  would  be  singular  to  entrust  the  power  of  making  war 
to  one  body,  and  that  of  peace  to  another.  His  reason- 
ing, however,  was  ineffectual ;  the  majority  of  the  conven- 
tion being  unwilling  to  entrust  so  important  a  power  to 
the  senate  alone. 

The  same  objection  was  raised  to  giving  to  the  senate 
alone  the  treaty-making  power.  A  proposal  to  give  it 
to  the  president  met  with  no  more  favor,  and  it  was 
finally  agreed  that  the  treaty-making  power  should  be 
given  to  the  president,  by  and  with  the  advice  and  con- 
sent of  two-thirds  of  the  senators  present.  The  two- 
thirds  vote  was  objected  to  by  many,  as  the  minority 
would  thus  be  able  to  control  the  majority,  and  it  was 
urged  that,  as  the  president  was  to  be  associated  with 
the  senate  in  the  negotiation  of  treaties,  that  would  be  a 
sufficient  check.4  There  were,  on  the  other  hand,  those 

'Elliot,  V,  415. 
*Ibid.,  427. 
*Ibid.,  529. 
4  Ibid.,  524. 


United  States  Senate.  9 

who  would  have  still  further  restricted  the  power  of  the 
senate  ;  and  the  conventions  of  North  Carolina  and 
Virginia  which  adopted  the  constitution  proposed  that, 
for  ceding  territorial  rights,  the  consent  of  three-fourths 
of  the  senate  should  be  required.1 

The  trial  of  impeachments  seems  to  have  been  con- 
fided to  the  senate  less  because  it  was  thought  to  be  pre- 
eminently fitted  for  the  work  than  because  there  was  no 
other  body  better  suited  to  it.2  Both  Randolph's  and 
Pinckney's  plans  gave  the  trial  of  impeachments  to  the 
national  judiciary,  and  it  was  thus  reported  by  the  com- 
mittee of  detail.  Not  until  near  the  end  of  the  conven- 
tion was  it  proposed  to  substitute  the  senate  in  the  trial 
of  the  impeachment  of  the  president.3  It  was  urged  in 
favor  of  the  change  that  a  small  number  of  judges,  in- 
debted to  the  president  for  their  appointments,  could 
scarcely  be  impartial  and  might  be  corrupted  ;4  and  it 
was  finally  decided  to  give  to  the  senate  the  trial,  not 
only  of  the  president,  but  of  all  officers  liable  to  im- 
peachment. 

As,  in  the  state  governments,  all  the  appointments  were 
not  made  in  the  same  manner,  so,  in  the  national  con- 
vention, it  seems  not  to  have  been  intended  at  first  to 
place  the  appointment  of  all  officers  in  the  power  of  one 
person  or  body.  Randolph's  plan  mentioned  only  the 
judges,  the  appointment  of  whom  he  would  have  given 
to  the  national  legislature.  Pinckney's  plan  gave  to  the 

1  Elliot,  IV,  245  ;  III,  Virginia,  660. 

2  Elliot  V,  508,  and  Federalist,  No.  65.      In  the  latter  Hamilton  up- 
holds the  plan  adopted  by  the  convention,   not  by  showing  that  the 
senate  was  a  body  eminently  fitted  for  the  work,  but  by   pointing  out 
the  defects  in  the  other  plans  proposed,  and  concluding  that  the  duty 
might  better  be  assigned  to  the  senate  than  to  any  other  body. 

3  Elliot,    V,    507.     The   constitutions  of  Mass,  and  Del.,  and  the 
second  constitution  of  N.  H.  gave  the  trial   of  impeachments  to   the 
upper  house  ;  while  in  S.  C.  the  trial  of  impeachments  was  given  to 
the  senate  and  all  judges  not  members  of  the  lower  house ;  and  in 
New  York  to  the  senate,  chancellor,  and  judges  of  the  supreme  court. 

4  Ibid.,  528,  529. 


io  The  Origin  and  Development  of  the 

senate  the  appointment  of  judges  of  the  supreme  court, 
ambassadors,  and  all  ministers  to  foreign  ports ;  and  to 
the  president,  with  the  consent  of  the  senate,  all  other 
appointments.  While  Hamilton  would  have  given  the 
appointment  of  all  officers  to  the  president,  and  to 
the  senate,  the  confirmation  of  all  but  the  heads  of  the 
departments.  A  proposal  to  refer  certain  appointments 
to  the  legislatures  or  executives  of  the  several  states,1  as 
well  as  a  confirmation  of  certain  appointments  by  an 
equal  vote  of  the  states,2  met  with  little  support.  The 
chief  debates  were  over  the  manner  of  appointment 
of  the  judicial  officers  and  ambassadors.  Mr.  Gorham 
suggested  "  that  the  judges  be  appointed  by  the  execu- 
tive, with  the  advice  and  consent  of  the  second  branch, 
in  the  mode  prescribed  by  the  constitution  of  Massa- 
chusetts." "  This  mode,"  he  said,  "  had  been  practised 
long  in  that  country,  and  was  found  to  answer  perfectly 
well."  3  Mr.  Madison  suggested  a  confirmation  by  two- 
thirds  of  the  senate.  Both  of  these  as  well  as  an  ap- 
pointment by  the  president  and  by  the  national  legisla- 
ture were  voted  down :  the  appointment  of  judges 
and  also  of  ambassadors  was  given  to  the  senate  ;  and 
to  the  president,  the  appointment  of  all  officers  not 
otherwise  provided  for.  The  .first  draft  of  the  constitu- 
tion regulated  appointments  in  this  manner,  and  it  was 
not  until  the  first  of  September  that  a  committee  of 
eleven,  to  whom  the  postponed  parts  of  the  constitution 
had  been  referred,  reported  the  clause  substantially  as  it 
now  stands.4  To  the  objection  of  Mr.  Wilson  that  this 
mode  would  destroy  the  responsibility  of  the  executive, 

1  Elliot,  V,  475. 

*Ibid..  266. 

3  Ibid.,  328.  Mr.  Gorham's  recollection  seems  to  have  been 
at  fault  for  the  constitution  then  in  force  in  Massachusetts  says  : 
"All  judicial  officers  shall  be  appointed  by  the  Governor  by  and  with 
the  advice  and  consent  of  the  Council,"  which  was  not  the  second 
branch  of  the  legislature. 

4 Ibid.,  507. 


United  States  Senate.  n 

Gouverneur  Morris  replied  "that,  as  the  President  was 
to  nominate,  there  would  be  responsibility,  and  as  the 
Senate  was  to  concur,  there  would  be  security."1  Mr. 
Gerry,  on  the  other  hand,  said  :  "  The  idea  of  responsi- 
bility in  the  nomination  to  office  is  chimerical.  The 
President  cannot  know  all  characters,  and  can  therefore 
always  plead  ignorance."2  There  was,  however,  very 
little  debate,  and,  after  a  slight  change,  the  clause  was 
adopted. 

To  the  senate  had  been  left  the  choice  of  its  president, 
as  well  as  its  other  officers,  until  a  successor  for  the  pres- 
ident was  provided,  when,  in  order  to  give  him  some- 
thing to  do,  he  was  made  president  of  the  senate.  This 
plan  was  advocated  because  otherwise  some  member  of 
the  senate  would  have  to  preside,  and  would  thus  be  de- 
prived of  his  vote  except  in  the  case  of  a  tie.3  It  was 
objected  to  as  being  an  encroachment  on  the  rights  of  the 
senate,  and  because  it  mingled  too  much  the  legislative 
and  executive  powers.4  Mr.  Gerry,  thinking  that  there 
would  be  between  the  president  and  vice  president  a 
close  intimacy,  said  that  they  "  might  as  well  put  the 
president  himself  at  the  head  of  the  legislature."  Gou- 
verneur Morris,  with  truer  insight,  saw  that  the  relations 
of  the  two  would  not  be  such  as  to  warrant  any  fear.5 

Two  other  subjects  deserve  mention  from  the  influence 
which  a  different  decision  of  them  would  have  had  on 
the  senate.  The  first  of  these  is  the  manner  of  electing 
the  president  of  the  United  States.  Many  methods  were 
suggested,  two  of  which  would  have  changed  considera- 
bly the  relations  of  the  president  and  senate.  One  pro- 
viding for  an  election  by  the  national  legislature,  which 

1  Elliot,  V,  523. 
*Ibid.,  523- 
*  Ibid.,  522. 
•»  Ibid. 
blbid.,  522. 


12  The  Origin  and  Development  of  the 

was  the  plan  adopted  in  most  of  the  state  constitutions,1 
was  at  first  the  favorite  and  was  adopted.  Later,  when 
this  was  reconsidered  and  the  choice  of  the  president 
given  to  electors,  it  was  proposed  that,  in  case  of  two 
candidates  having  an  equal  number  of  votes  or  of  no 
candidate  having  -a  majority,  the  election  should  be  made 
by  the  senate  out  of  the  five  highest  candidates.  As  it 
was  thought  that,  in  the  choice  by  electors,  there  would 
seldom  be  anyone  who  would  have  a  majority,  it  was 
believed  that  this  was  really  giving  the  election  to  the 
senate ;  and  the  fear  that  this  would  make  the  president 
dependent  on  the  senate,  lead  to  corruption,  and  lay  the 
foundation  for  an  aristocracy,  led  to  its  rejection  and  the 
substitution  of  the  house  for  the  senate.2 

The  other  subject  to  be  noticed  is  the  proposal  for 
an  executive  council,  to  whom,  instead  of  the  sen- 
ate, should  be  given  the  confirmation  of  appointments 
made  by  the  president.  Many  objected  to  the  latter 
method  because  of  the  mingling  of  the  legislative  and 
executive  functions,  and  because  they  thought  that  it 
would  render  necessary  the  continuous  session  of  the 
senate,  a  circumstance  which  would  be  expensive  and 
might  be  dangerous.  Moreover,  they  thought  the  senate 
too  large  a  body  for  that  purpose.  That  there  should 
have  been  many  in  favor  of  an  executive  council  is  not 
strange,  for  one  was  provided  for  by  the  constitutions  of 
nearly  all  the  states,  and,  as  Colonel  Mason  said,  "  in 
rejecting  a  council  to  the  President  an  experiment  was 
about  to  be  tried  which  the  most  despotic  government 
had  never  ventured  upon."3  The  delegates  to  the  con- 

1  It  was  so  in  Delaware,    Maryland,  Virginia,   New  Jersey,    North 
Carolina.  South  Carolina  under  both  the  first  and  second  of  its  consti- 
tutions, and  in  New  Hampshire  under  its  first  constitution.     In  Penn- 
sylvania the  executive  officer  was  elected  by  the  assembly  and  council, 
in   Georgia   by    the    assembly   and  in   all    the    other   states  by  the 
people. 

2  Elliot,  V,  507,  520-524. 

.,  V,  525- 


United  States  Senate.  13 

vention,  however,  preferred  to  adopt  the  plan  of  the  col- 
onies in  the  earlier  days,  of  combining  in  the  upper 
house  the  duties  of  a  council  to  the  president  and  of  a 
branch  of  the  legislature. 

There  \vas  a  wide  difference  of  opinion  as  to  the  rela- 
tive powers  of  the  president,  senate,  and  house  of  repre- 
sentatives, in  the  government  as  finally  constituted. 
First,  in  regard  to  the  relation  of  the  president  and  sen- 
ate ;  there  were,  on  the  one  side,  those  who,  like  Mar- 
tin, believed  that  the  senate,  through  their  desire  for  the 
emoluments  and  the  offices  which  the  president  could 
give,  would  become  subservient  to  him  j1  on  the  other 
side,  there  were  those  who,  like  Madison,  believed  that 
the  power  of  the  senate  to  try  impeachments  and  to  con- 
firm nominations  would  make  the  president  dependent 
upon  it.2  As  regards  the  relative  powers  of  the  two 
houses,  there  was  the  same  difference  of  opinion.  Thus, 
there  were  many  who,  either  on  account  of  the  im- 
mense powers  given  to  the  senate,  or  the  small  number 
of  its  members,  or  their  long  continuance  in  office,3  or 
for  all  these  reasons,  fearedthat  the  senate  would  be  able 
to  destroy  any  balance  in  the  government  and  to  accom- 
plish whatever  usurpations  it  "wished  on  the  liberties  of 
the  people.  Colonel  Mason  even  went  so  far  as  to  say 
that  if  a  coalition  should  be  established  between  the 
president  and  the  senate  they  could  overthrow  the  gov- 
ernment.4 On  the  other  side  there  were  some  who  thought 
that  the  restriction  placed  upon  the  senate  in  regard  to 
bills  for  raising  revenue  rendered  it  almost  useless  as  a 
part  of  the  legislature.5  A  more  moderate  view  is  set 
forth  by  Hamilton  in  the  "  Federalist,"  where  he  says  : 
"  Against  the  force  of  the  immediate  representatives  of 

'  Elliot,  I,  361. 

2  Elliot,  V,  528. 

3  Elliot,  II,  286. 
^  Elliot,  ¥,513. 
6  Elliot,  I,  367. 


14  The  Origin  and  Development  of  the 

the  people,  nothing  will  be  able  to  maintain  even  the 
constitutional  authority  of  the  senate,  but  such  a  display 
of  enlightened  policy  and  attachment  to  the  public  good 
as  will  divide  with  that  branch  of  the  legislature  the 
affections  and  support  of  the  entire  body  of  the  people 
themselves."1 

It  was  pretty  generally  agreed  that  the  senate,  from 
the  manner  of  its  election,  would  be  composed  of  men 
of  greater  knowledge  and  broader  information  than  the 
house ;  and  that  their  proceedings  would  be  marked  by 
more  coolness,  system,  and  wisdom  than  those  of  the 
popular  branch.  There  were  also  many  who,  thinking 
that  the  senators  would  be  repeatedly  re-elected  and 
would  reside  at  the  capitol  city,  feared  that  they  would 
form  a  class  by  themselves  and  so  lay  the  foundation  of 
an  aristocracy ;  and  this  fear,  which  led  to  the  proposal 
of  an  amendment  in  the  New  York  convention,  lasted 
for  some  time  after  the  government  had  gone  into 
operation. 

1  Federalist,  No.  63. 


CHAPTER  II. 


ELECTION    OF    SENATORS    AND    ORGANIZATION    OF    THE 

SENATE. 

THE  constitution  framed  by  the  convention  and  finally 
adopted,  provided  that  "  The  times,  places,  and  manner 
of  holding  elections  for  Senators  and  Representatives 
shall  be  prescribed  in  each  State  by  the  legislature 
thereof ;  but  the  Congress  may,  at  any  time,  by  law 
make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators."1  This  privilege  congress  did  not 
avail  itself  of  until  1866.  In  the  meantime,  the  manner 
of  chposing  its  senators  was  regulated  by  each  state,  the 
senators  of  some  states  being  chosen  by  the  two  houses 
sitting  separately,  and  others  by  a  joint  meeting  of  the 
two  houses  ;2  but  in  either  case  a  majority  was  always 
considered  necessary  to  elect,  until  1866,  when  the  New 
Jersey  legislature,  in  joint  session,  decided  that  a  plural- 
ity should  elect.  The  senator  so  chosen  was  refused  a 
seat  in  the  senate,  and  this  case  led  to  the  passage  -of  the 
law  regulating  the  mode  of  election.  This  law  provided 
first  for  a  viva  voce  election  in  each  house  by  a  majority 
of  all  the  votes  cast.  If  the  same  person  did  not  receive 
a  majority  in  both  houses,  or  if  either  house  had  failed 
to  elect,  then,  on  the  following  day,  the  two  houses,  in 
joint  assembly,  were  to  proceed  in  the  same  manner  as 
before  to  the  choice  of  a  senator.3 

1  Article  I,  section  IV. 

2  In   1866  there  were  sixteen  or  seventeen  states  in  which  the  sen- 
ators were  so  elected  (Congr.   Globe,  ist  Sess.,  39th  Congr.,  p.  1571, 
statement  of  Mr.  Johnson.)  though   there   were  some  distinguished 
men,  like  Stunner  and  Kent,  who  thought  that  this  was  contrary  to  the 
spirit  of  the  constitution.     (Sumner,  Works,  X,  381,  382.) 

3  Revised  Statutes,  Sects.,  14,  15,  16. 


1 6  The  Origin  and  Development  of  the 

The  right  conferred  on  the  senate  of  judging  of  the 
elections,  qualifications,  and  returns  of  its  own  members, 
and  of  punishing  them  for  disorderly  behavior,  and, 
with  the  concurrence  of  two-thirds,  of  expelling  a  mem- 
ber,1 has  been  frequently  exercised,  there  having  been, 
between  1789  and  1885,  sixty-eight  election  cases  consid- 
ered by  the  senate,2  and  ten  senators  expelled,  beside 
those  who,  at  the  breaking  out  of  the  war,  were  either 
expelled,  or  their  names  stricken  from  the  lists,  or  their 
seats  declared  vacant.  The  cases  of  senators  who  were 
appointed  by  the  governor  are  important  as  interpreta- 
tions of  the  power,  granted  by  the  constitution  to  the 
state  executive,  to  make  temporary  appointments  when 
"  vacancies  happen  by  resignation  or  otherwise,  during 
the  recess  of  the  legislature  of  any  State."3 

The  decision  in  1797  in  the  case  of  Kensey  Johns  of 
Delaware  established  the  principle  that  the  executive 
could  not  make  an  appointment  to  fill  a  vacancy  if  a 
session  of  the  legislature  had  been  held  since  the  vacancy 
existed.4 

In  1809  it  was  decided5  that  a  senator,  appointed  by  a 
governor  during  the  recess  of  the  legislature  to  hold 
office  until  the  meeting  of  the  next  legislature,  should 
hold  his  seat,  after  the  meeting  of  the  legislature,  until 
the  choice  of  a  successor  ;  while  in  1850  it  was  also  held 
that  he  should  keep  his  seat  until  his  successor  had  sig- 
nified his  acceptance  of  his  election  by  the  presentation 
of  his  credentials.6  In  1853  this  was  further  modified 
by  the  decision  in  the  case  of  Samuel  Phelps,  who  was 
appointed  by  the  governor  during  the  recess  of  the  legis- 

1  Article  I,  section  V. 

2 Sen.  Misc.  Docs.,  49th  Congr.  ist  Sess.,  No.  47. 

3  Art.  I,  sect.  3. 

4  Sen.   Misc.   Docs.,    ist  Sess.,  49th  Congr.,  No.  47,  p.  I.     This  de- 
cision was  reaffirmed  in  1853,  Ibid.,  p.  23. 

5  Ibid.,  p.  4.     In  the  case  of  Samuel  Smith. 

6  This  decision  has  since  governed  the  action  of  the  senate.     (2d 
Sess.,  3ist  Congr.,  Sen.  Reports,  No.  269.) 


United  States  Senate.  17 

lature  to  fill  a  vacancy.  Afterwards  trie  state  legislature 
met  and  adjourned  without  electing  a  senator.  Phelps 
continued  to  occupy  his  seat  during  the  remainder  of 
the  session  of  congress  after  the  adjournment  of  the 
state  legislature  and  also  at  a  special  session  ;  but,  when 
congress  again  met  in  December  and  he  attended,  his 
right  to  do  so  was  questioned  and  decided  in  the  nega- 
tive.1 

The  right  of  the  governor  to  make  appointments  to 
fill  vacancies  caused  by  the  expiration  of  terms  of  office, 
as  well  as  to  make  appointments  to  fill  vacancies  in  un- 
finished terms,  was  not  questioned  until  1825  when  a 
senator  so  appointed  was  declared  not  to  be  legally  en- 
titled to  his  seat  but,  as  neither  the  debates  nor  the 
reasons  for  the  decision  are  recorded,  it  is  impossible  to 
tell  whether  the  decision  was  made  on  this  ground  or 
because  the  appointment  was  made  in  advance  of  the 
vacancy.2  In  favor  of  the  first  view  are  the  numerous 
examples  during  the  next  fifty  years  of  cases  in  which, 
under  the  same  circumstances,  vacancies  have  been  al- 
lowed to  exist  until  the  meeting  of  the  legislature,3  as 
also  the  report  of  a  committee  on  a  somewhat  similar 
case  in  1837,  which  states  the  decision  to  have  been 
made  on  this  ground  and  to  have  been  generally  acqui- 
esced in.  In  support  of  the  other  view  are  quotations 
from  Story4  and  the  "  National  Intelligencer"5  which 
would  seem  to  show  that  Mr.  Lanman's  right  to  a  seat 
in  the  senate  was  denied  on  the  ground  that  the  governor 
could  not  make  an  appointment  in  anticipation  of  a 
vacancy.  In  1879  an(^  again  in  ^^5  it  was  held  that 
the  governor  had  a  right  to  make  an  appointment  to  fill 

1  49th  Congress  ist  Sess.,  Sen.  Misc.  Docs.,  No.  47,  p.  17. 

2  Ibid.,  pp.  28,  31. 

3  49th  Congr.,  ist  Sess.,  Sen.  Misc.  Docs.,  No.  47,  p.  29. 

4  Commentaries,  \  727,  note. 

5  March  8th,  1825. 


1 8  The  Origin  and  Development  of  the 

a  vacancy  occasioned  by  the  expiration  of  a  term  of  a 
senator.1 

The  question  whether  the  right  of  the  senate  to  judge 
of  the  "  elections,  qualifications,  and  returns"  of  its  own 
members  gave  it  the  power  to  admit  when  and  how 
it  pleased  senators  from  the  seceeded  states,  occupied 
much  of  the  time  of  the  Thirty-ninth  Congress. 
Finally  a  resolution  was  adopted,  in  the  senate  by  a  vote 
of  29  to  1 8,  which  declared,  in  order  to  close  agitation, 
that  no  senator  or  representative  should  be  admitted  into 
either  branch  of  congress  from  any  of  the  said  states 
until  congress  declared  such  states  to  be  entitled  to  rep- 
resentation.2 

According  to  Hamilton  it  was  to  be  expected  from  the 
choice  of  senators  by  the  state  legislatures,  who  them- 
selves would  be  select  bodies  of  men,  that  they  would  be 
chosen  with  peculiar  care  and  judgment;3  and  that 
those  elected  would  be  men  most  distinguished  for  their 
abilities  and  virtue.4  It  was  likewise  expected  that  this 
method  would  have  the  advantage  of  removing  the 
choice  from  the  activity  of  party  zeal.  Indeed  the 
choice  by  the  state  legislatures  seems  to  have  been 
looked  upon  with  favor  pretty  generally  ;  and  whereas, 
in  the  first  congresses,  numerous  resolutions  were  intro- 
duced for  amendments  to  shorten  the  term  of  office,  to 
prevent  naturalized  citizens  from  being  chosen  senators, 
to  prevent  one  indebted  to  the  United  States  or  entrusted 
with  the  management  of  the  money  of  the  United  States 
or  direction  of  any  bank  from  being  a  senator,  and  to 
prevent  members  of  congress  from  being  eligible  to 
civil  office,  no  motion  seems  to  have  been  made  to  change 
the  method  of  election. 

J49th  Congr.  ist  Sess.,  Sen.  Misc.  Docs.,  No.  47,  pp.  26,  36. 

2  Congr.  Globe,  ist  Sess.,  39th  Congr.,  pp.  1143,  H47- 

3  Federalist,  No.  27. 
4 Ibid.,  No.  64. 


United  States  Senate.  19 

The  wished  for  removal  of  senatorial  elections  from 
party  politics  and  popular  prejudices  obtained  to  a  cer- 
tain extent  at  first.  Thus  Gallatin,  a  strong  republican 
and  a  representative  of  a  republican  district,  was  elected 
senator  from  Pennsylvania  by  a  Federalist  legislature, 
and  this  without  his  being  a  candidate  by  his  own  mo- 
tion or  that  of  his  friends  ;*  and  Adams  and  Pickering 
were  chosen  senators  by  a  Massachusetts  legislature  a 
few  months  after  they  had  been  defeated  in  an  election 
for  representatives,2  which  shows  a  state  of  affairs  far 
different  from  the  present,  when  a  Nebraska  senator  re- 
cently resigned  his  position  because  the  party  majority 
in  the  state  legislature  had  changed  and  he  was  no  longer 
in  accord  with  it. 

A  more  important  departure  from  the  original  idea 
regarding  the  election  of  senators  is  to  be  found  in  the 
gradual  change  from  an  indirect  election  to  one  which, 
in  many  cases,  is  practically  direct.  As  early  as  1851, 
when  Sumner  was  elected  senator,  it  seems  that  the  idea 
of  his  candidacy  was  present  in  the  state  elections  ;3  and 
since  then  candidates  for  the  state  legislature  have  fre- 
quently been  pledged  in  advance  to  vote  for  a  particular 
person  as  senator  ;  and  one  constitution  even  contains 
a  provision  in  accordance  with  which  the  legislature  may 
provide  for  the  expression  by  the  electors  of  their  prefer- 
ence for  United  States  senator  at  the  election  next  pre- 
ceding the  expiration  of  the  term  of  a  senator.4 

The  failure  of  the  constitution  in  this  respect  is  one  of 
the  prominent  reasons  urged  in  favor  of  a  change  in  the 
method  of  election.  Another  reason  is  the  corruption 
practised  in  the  election  of  senators.  This  also  is  no  new 
thing.  In  1867,  when  Conkling  was  a  candidate  for  sen- 

1  Stevens,  Gallatin,  p.  98. 

"  Life  of  Pickering,  IV,  52,  53. 

3  Sutnner,  Works,  II,  426. 

4  That  of  Nebraska  of  1875. 


2O  The  Origin  and  Development  of  the 

ator,  he  wrote  that  he  might  have  had  from  New  York 
$200,000  to  use  in  securing  his  election  j1  while  Harpers 
Weekly  in  1870  asserted  that  votes  for  senators  in  Rhode 
Island  were  bought  at  the  rate  of  five  dollars  a  head.2 
Federal  patronage  also  is  frequently  employed  to  control 
the  elections.  This  corruption,  which  is  used  in  the  elec- 
tion of  the  members  of  the  state  legislature,  in  the  cau- 
cus, and  in  the  action  of  the  state  legislature,  has  become 
a  great  evil.  So  stubborn  and  so  eager  are  the  contests 
at  times  that  the  election  of  senators  has  been  known  to 
occupy  an  entire  session  of  the  legislature.  The  de- 
mand for  popular  election  of  senators  has  been  made  by 
the  legislatures  of  many  of  the  states3  and  in  the  plat- 
forms of  numerous  party  conventions.  Such  a  demand 
was  made  by  California  and  Iowa  as  early  as  i874.4 
The  house  of  representatives  has  twice  passed,  by  the 
requisite  two-thirds  vote,  a  resolution  for  the  proposed 
amendment, — in  the  52nd  Congress  almost  unanimously. 
These  resolutions  were  quietly  pigeon-holed  in  the  sen- 
ate ;  and  similar  resolutions,  introduced  in  the  senate, 
have  served  no  purpose  other  than  to  give  the  mover  an 
opportunity  to  gain  popularity  with  his  constituents  by 
making  a  speech ;  and,  although  nearly  every  congress 
witnesses  the  introduction  of  such  resolutions,  there 
seems  to  be  no  immediate  probability  or  even  possibility 
of  their  passing  the  senate. 

In  its  organization  the  senate  has  the  advantage  of 
the  house  in  that,  ordinarily,  it  does  not  have  to  choose 
a  presiding  officer ;  and  that,  even  when  it  does, 
the  office  of  president  pro  tempore  being  of  slight 
importance  as  compared  with  that  of  speaker  of  the 
house,  his  election  is  of  correspondingly  less  difficulty. 
The  independence  of  the  vice  president,  of  the  senate, 

1  Life  of  Coukling,  p.  287. 

2  Nov.  26th,  p.  755. 

3 111.,  Ind.,  Calif.,  Id.,  la.,  Kan.,  Ky.,  La.,  N.  Y.,  Or.,  Wis. 
4 43rd  Congr.,  ist  Sess.,  Sen.  Misc.  Docs.,  Nos.  66,  69. 


United  States  Senate.  21 

and  its  consequent  inability,  in  any  way,  to  control  him, 
are  undoubtedly  the  chief  reasons  why  the  senate  always 
has  done,  and  still  continues  to  do  for  itself  things  which,, 
in  the  house,  are  confided  to  the  presiding  officer.  Even 
the  right  of  preserving  order,  which  is  generally  consid- 
ered inherent  in  the  duties  of  any  presiding  officer,  has, 
at  times,  been  questioned.  The  rules  of  the  First  Con- 
gress prescribed  the  course  of  procedure  when  a  senator 
was  called  to  order,  but  did  not  say  who  was  to  exercise 
the  power.1  The  presiding  officer,  however,  had,  with- 
out question,  been  accustomed  to  exercise  it,  until  the 
winter  of  1826,  when  Vice  President  Calhoun  decided 
that  the  right  to  call  to  order  on  questions  touching  the 
latitude  or  freedom  of  debate  belonged  exclusively  to 
the  members  of  the  senate  and  not  to  the  chair.2  This 
gave  rise  to  much  discussion  as  to  the  position  of  the 
vice  president  in  the  senate  and  whence  he  derived  his 
powers.  Some,  like  John  Quincy  Adams,  held  that 
they  were  derived  from  the  constitution,  and  others  that 
they  were  dependent  upon  the  rules  and  usages  of  the 
senate.3  A  proposal  in  1828  for  the  amendment  of  the 
rules  brought  on  another  long  discussion,  and  it  was  fin- 
ally decided,  two  to  one,  to  change  the  rules  so  as  to 
read  :  "  When  a  member  shall  be  called  to  order  by  the 
President  or  a  Senator,"  etc.4 

1  The  rules  of  the  First  Congress  on  the  subject  were  as  follows  : 
Rule  16  :  "When  a  member  shall  be  called  to  order,  he  shall  sit  down 
until  the  President  shall  have  determined  whether  he  is  in  order  or 
not :  every  question  of  order  shall  be  decided  by  the  President  with- 
out debate  ;  but  if  there  be  a  doubt  in  his  mind,  he  may  call  for  the 
sense  of  the  Senate."     Rule  17  :  "If  a  member  be  called  to  order  for 
words  spoken,  the  exceptionable  words  shall  be  immediately  taken 
down  in  writing,  that  the  President  may  be  better  enabled  to  judge  of 
the  matter." 

2  Congressional  Debates,  vol.  II,  p.  573. 

3  Calhoun,  Works,  vol.  VI,  pp.  322  ff. 

4Congr.  Deb.,  ist  Sess.,  2oth  Congr.,  vol.  IV,  Fart  I,  pp.  340, 
341.  At  the  same  time  it  was  agreed,  only  two  voting  against 
it,  that  "every  question  of  order  shall  be  decided  by  the  President, 
without  debate,  subject  to  appeal  to  the  Senate." 


22  The  Origin  and  Development  of  the 

The  rule  as  amended,  however,  did  not  declare,  as  does 
for  example  that  of  the  house  of  representatives,  that 
the  presiding  officer  should  call  to  order,  and  a  question 
arose  as  to  whether  the  duty  was  more  imperative  on  the 
chair  than  on  any  member  of  the  house.  Mr.  Fillmore, 
calling  attention  to  this  in  1850,  stated  that  he  had  con- 
cluded that,  though  under  the  rule  the  authority  of  the 
chair  and  of  senators  to  call  to  order  was  equal,  yet  the 
duty  was  more  imperative  on  the  chair,  and  he  should 
feel  bound  to  discharge  it  accordingly.1  However,  Mr. 
Bright,  a  few  years  later,  when  acting  as  presiding  officer, 
held  that  the  rules  did  not  authorize  him  to  call  a  sen- 
ator to  order.2  This  decision  was  severely  criti- 
cized, and  led  to  the  amendment  of  the  rules  so  as  to 
leave  no  doubt  that  it  was  imperative  on  the  presiding 
officer  to  preserve  order.3 

The  vice  president  can  exercise  but  little  influence  on 
legislation,  except  through  the  power  of  the  casting 
vote ;  and,  as  it  has  seldom  happened  that  parties  were 
equally  divided  in  the  senate,  he  has  rarely  had  occasion 
to  use  it.4  In  the  convention,  when  a  council  for  the 
president  was  under  discussion,  it  was  suggested  that  the 
president  of  the  senate,  the  speaker  of  the  house,  the  chief 
justices  of  the  supreme  court,  and  the  heads  of  depart- 
ments should  compose  it  f  and  Adams  considered  his  ex- 
clusion from  the  cabinet  as  a  want  of  personal  respect.6 

1  Congr.  Globe,  ist  Sess.,  3ist  Congr.,  p.  632. 

2  Ibid.,  34th  Congr.,  ist  Sess.,  p.  1483. 

3  The  rule  reads  :  "  If  any  member,  in  speaking  or  otherwise,  trans- 
gress the  rules  of  the  Senate,  the  Presiding  Officer  shall,  or  any  mem- 
ber may,  call  to  order  ;  and  when  a  member  shall  be  called  to  order  by 
the  President,  or  a  Senator,  he  shall  sit  down,  and  shall  not  proceed 
without  leave  of  the  Senate.     And  every  question  of  order  shall  be 
decided  by  the  President,  without  debate,  subject  to  an  appeal  to  the 
Senate  ;  and  the  President  may  call  for  the  sense  of  the  Senate  on  any 
question  of  order."     (ist  Sess.,  34th  Congr.,  pp.  1477,  1484.) 

4  It  was  most  considerable  during  the  First  Congress. 

5  Elliot,  V,  p.  462. 

6  Jefferson,  however,  regarded  a  share  in  the  executive  deliberations 
as  inconsistent  with  his  legislative  duties. 


United  States  Senate.  23 

Had  Washington,  in  accordance  with  the  desire  of 
Adams,  summoned  him,  as  vice  president,  to  the  cabinet 
meetings,  it  is  probable  that  the  influence  of  both  the 
president  and  vice  president  in  the  senate,  especially 
since  the  change  in  the  manner  of  election,  so  that  the 
president  and  vice  president  are  members  of  the  same 
party,  would  have  been  greater  than  it  now  is. 

The  attendance  of  the  vice  president  has  varied  much 
in  accordance  with  circumstances  and  the  will  of  the 
occupant  of  the  office.  After  the  passage  of  the  law  of 
March  first,  1792,  giving  the  succession  to  the  presidency 
to  the  president  pro  tempore^  in  case  there  were  no  vice 
president,  and  after  him  to  the  speaker  of  the  house,  it 
became  customary  for  the  vice  president  to  retire  at  least 
a  few  days  before  the  end  of  the  session,  to  give  an  op- 
portunity for  the  election  of  a  president  pro  tempore, 
that  the  succession  to  the  presidency  might  not  be  en- 
dangered ]l  it  being  maintained  that  the  president  pro 
tempore  held  office  over  a  recess  of  the  senate,  provided 
the  vice  president  had  not  appeared  in  the  senate  since 
his  election.2 

The  constitution  provides  for  the  choice  of  a  president 
pro  tempore  in  the  absence  of  the  vice  president.  In 
1820  provision  was  also  made  by  rule  for  filling  the  chair 
temporarily,  it  being  provided  that  "  the  Vice  President, 
or  President  of  the  Senate  pro  tempore,  shall  have  the 
right  to  name  a  member  to  perform  the  duties  of  the 
Chair ;  but  such  a  substitution  shall  not  extend  beyond 

1  The  change  in  the  succession  to  the  presidency  in  1886  made  this 
no  longer  necessary. 

2  This  was  questioned  in  the  2d  Sess.  39th  Congr.  (p.  380),  though  the 
presidents  pro  tempore  of  the  preceding  sessions,  in  the  absence  of  the 
vice  president  at  the  opening  of  the  session,  had,  with  but  four  excep- 
tions, presided,  ( ist  Sess.  44th  Congr.,  Sen.  Reports,  No.  3,  p.  3).   This 
practice  was  upheld  by  the  chair.     In  the  first  session  44th  Congress, 
(p.  377),  a  resolution  which  declared  the  office  of  president  pro  tent- 
pore  of  the  senate  to  be  held  at  the  pleasure  of  that  body  was  adopted. 


24  The  Origin  and  Development  of  the 

an  adjournment."1  This  rule  was  interpreted  by  some 
so  as  to  limit  the  exercise  of  this  power  to  cases  in  which 
the  presiding  officer  was  present  in  the  senate  chamber r 
and  by  others  to  extend  to  an  appointment  by  him  when 
not  present.  The  first  case  in  which  objection  seems  to 
have  been  made  to  an  appointment  by  the  presiding  of- 
ficer in  his  absence  was  in  1845.  ^ne  objection  was 
withdrawn  after  some  discussion  in  which  attention  was 
called  to  the  case  of  Mr.  Southard,  who,  for  several  days, 
had  made  such  appointments.2  The  next  session,  how- 
ever, a  similar  circumstance  arising,  the  senate  voted  to 
proceed  to  the  election  of  a  president  pro  tempore,  and 
the  man  designated  by  the  vice  president  was  chosen  by 
the  senate.3  In  1856,  on  a  similar  occasion,  the  senate 
again  unanimously  elected  the  man  designated  by  the 
presiding  officer  to  take  his  place.4  In  1879  sucn  an 
appointment  by  the  vice  president  passed  without  ques- 
tion, but  in  1882  the  senate  again  questioned  the  right, 
and,  after  some  debate,  adjourned,  in  order  to  avoid  a 
decision.5  At  the  next  session,  in  the  revision  which 
the  rules  underwent,  the  power  to  make  such  an  appoint- 
ment was  expressly  conferred  on  the  president  pro-  tem- 
pore, no  mention  being  made  of  the  vice  president.6 

Until  recently  the  tenure  of  office  of  the  president  pro 
tempore  has  been  held  to  be  dependent  upon  the  vice 
president  and  to  cease  with  his  return  to  the  senate/ 
This  interpretation  of  the  clause  of  the  constitution 
which,  reads  :  "The  Senate  shall  choose  a  President  pro 
tempore  in  the  absence  of  the  Vice  President^'  was  not 
even  questioned  until  1861,  when  a  resolution  to  reverse 

1  No.  22  of  those  adopted  in  1820, 

2  Congr.  Globe,  ist  Sess.,  29th  Congr.,  p.  96. 

3  Ibid.,  2d  Sess.,  29th  Congr.,  pp.  161,  162, 

4  Ibid.)  ist  Sess.,  34th  Congr.,  pp.  1368,  1369. 

5  Congr.  Record,  ist  Sess.,  47th  Congr.,  pp.  4449-4454. 

6  Ibid.>  ist  Sess.,  48th  Congr.,  pp.  160,  168,  237. 

7 Congr.  Record,  ist  Sess.,  5 ist  Congr.,  p.  2145,  for  list  of  cases,. 


United  States  Senate.  25 

the  practice  was  introduced  and  debated,  but  not  voted 
on.1  When  next  it  was  brought  up,  the  presidential  suc- 
cession had  been  changed  so  as  to  exclude  the  president 
pro  tempore,  and  this  seems  to  have  influenced  some  to 
reverse  the  practice.  Those  who  favored  the  change 
did  so  because  of  the  greater  convenience,  and  those 
opposing  it  did  so  on  the  ground  that  it  was  unconsti- 
tutional, since  the  term  was  fixed  by  the  constitution.2 

The  right  of  the  senate  to  control  of  the  president  pro 
tempore  as  well  as  the  other  officers  of  the  senate,  and,  in 
consequence,  the  right  to  remove  him  and  elect  another 
at  any  time,  though  questioned,  has  always  been  upheld 
by  the  majority.3 

Prior  to  1824  the  tenure  of  a^  the  other  officers  of  the  sen- 
ate was  during  good  behavior.  It  was  then  provided  that 
the  secretary  of  the  senate,  sergeant-at-arms,  door  keeper, 
and  assistant  door  keeper  should  be  elected  at  the  first 
session  of  every  congress.1  This  rule  remained  in  force 
until  i849,2  when,  on  account  of  the  inconveniences  of 
such  frequent  elections,  it  was  repealed,  and  an  attempt 
to  renew  it  in  the  Thirty-second  Congress  failed.3  The 
Democratic  party  remaining  in  control  of  the  senate  un- 
til 1 86 1,  there  were  of  course  no  changes  in  the  officers 
for  party  reasons  ;  but  when,  in  that  year,  the  Republi- 
cans obtained  a  majority,  they  at  once  proceeded  to 
change  certain  of  the  officers  of  the  senate. 

Although  this  action  seems  to  have  been  dictated  by 
party  motives  only,  the  spoils  system  was  not  fully  in- 
troduced. For  some  time  afterwards  the  acting  secretary 

1  Congr.  Globe,  ist  Sess. ,  37th  Congr.,  p.  436. 
2Congr.  Record,  ist  Sess.,  sist  Congr.,  p.  2153. 

3 Ibid.,  ist  Sess.,  44th  Congr.,  Sen.  Report,  No.  3,  p.  7.  .Also  Congr. 
Record,  ist  Sess.,  44th  Congr.,  p.  373,  and  47th  Congr.,  special,  pp. 

519  ff. 

4  Annals  of  Congr.,  ist  Sess.,  i8th  Congr.,  p.  140. 
5 Congr.  Globe,  2d  Sess.,  3oth  Congr.,  p.  490. 
6  Ibid.,  ist  Sess.,  32d  Congr.,  p.  62. 


26  The  Origin  and  Development  of  the 

was  a  Democrat,1  and  when  the  Democrats  again  came 
into  power  in  1879  thirty  of  the  one  hundred  and 
twenty  offices  of  the  senate  were  filled  by  Democrats, 
some  of  whom  had  held  over  from  the  previous  Demo- 
cratic administration,  while  others  had  been  chosen 
by  the  Republican  senate.  With  the  return  of  the  Dem- 
ocrats to  power  in  1879  a  sweeping  change  in  the  senate 
offices  was  made,  the  spoils  system  being  fully  intro- 
duced.2 

In  the  early  days  of  the  senate,  the  vice  president  hav- 
ing taken  his  seat,  or,  he  being  absent,  a  president  pro 
tempore  having  been  elected,  and  the  other  officers  of 
the  senate  having  been  chosen,  the  organization  of  the 
senate  was  completed  ;  for  there  were  at  first  no  standing 
committees  to  be  chosen.  By  an  act  of  August  sixth, 
1789,  a  joint  standing  committee  on  enrolled  bills,  com- 
posed of  two  members  from  the  house  and  one  from  the 
senate,  was  created  ;3  and  in  1806  a  senate  standing  com- 
mittee on  engrossed  bills  was  added.4  At  the  same  time 
it  was  provided  that,  "  When  any  subject  or  matter  shall 
have  been  referred  to  a  select  committee,  any  other  sub- 
ject or  matter  of  a  similar  nature,  may,  on  mQtion,  be 
referred  to  such  committee."5  During  the  next  session, 
in  obedience  to  an  act  making  appropriations  for  the 
purchase  of  books,  a  joint  standing  committee  on  the 
library  was  created  ;6  and,  at  the  succeeding  congress,  a 
standing  committee  to  audit  and  control  the  contingent 
expenses  of  the  senate  was  provided  for.7  These  were 

1  The  secretary,  Mr.  Dickens,  was  prevented  by  the  infirmities  of 
age  from  attending,  and  the  chief  clerk,  a  Democrat,  performed  the 
duties  of  the  secretary  until  finally,  on  the  advice  of  Mr.  Dickens,  a 
new  election  was  held  and  a  republican  chosen.  (Congr.  Globe,  ist 
Sess.,  37th  Congr.,  p.  119.) 

2 Congr.  Record,  ist  Sess.,  46th  Congr.,  pp.  48-60. 

3  Senate  Journal,  ist  Sess.,  ist  Congr.,  p.  54. 

4  Rule  22. 

5  Rule  14. 

6Sen.  Jour.,  2d  Sess.,  gth  Congr.,  vol.  IV,  p.  114,  Dec.  17,  1806. 
7 Ibid.,  ist  Sess.,  loth  Congr.,  vol.  IV,  p.  191,  Nov.  4,  1807. 


United  States  Senate.  27 

the  only  standing  committees  appointed  prior  to  1816, 
when  the  number  of  select  committees  had  become  so 
large1  and  the  inconveniences  of  frequent  balloting  had 
become  so  considerable,  it  was  agreed  that,  thereafter, 
eleven  standing  committees  should  be  appointed  at  the 
beginning  of  each  session.2  These  were  :  The  commit- 
tees on  foreign  relations,  on  finance,  on  commerce  and 
manufactures,  on  military  affairs,  on  the  militia,  on  naval 
affairs,  on  public  lands,  on  the  judiciary,  on  post  offices 
and  post  roads,  on  pensions,  and  on  claims.  The  two 
standing  committees  before  mentioned  were  continued. 
The  committee  for  the  District  of  Columbia  was  added 
almost  immediately  after.3  A  committee  on  Indian  af- 
fairs was  created  in  i8i9,4  and  one  on  roads  and  canals 
in  i82O.5  Other  standing  committees  have  been  added  as 
the  need  for  them  has  appeared,  until  at  the  second  session 
of  the  Fifty-second  Congress  there  were  forty-six  stand- 
ing committees  to  be  appointed  before  the  organization 
of  the  senate  was  completed. 

The  manner  of  appointment  has  been  changed  several 
times.  The  first  rules  provided  for  the  election  of  all 
commitjtees  by  ballot,  a  plurality  of  votes  electing.  It 
would,  however,  appear  from  the  Journals  that  the  rule 
was  frequently  set  aside,  for  often  instead  of  the  usual 
form,  "  Ordered,  That  ....  be  a  committee  for 
.  .  .  ,"  which  would  apply  to  any  method  of  choos- 
ing committees,  the  appointment  of  a  committee  is  noted 
thus : 

"  On  motion, 

"  Ordered,  That  .  .  .  be  a  committee  .  .  .  ," 
which  would  seem  to  indicate  that  the  committee  was 

between  90  and  100  were  appointed  at  the  ist  Sess.,  T4th  Congr. 
(3d  Sess.,  37th  Congr.,  Sen.  Misc.  Docs.,  No.  42,  p.  3.) 
aSen.  Jour.,  2d  Sess.,  I4th  Congr.,  p.  38. 
3 Ibid.,  49,  56. 

4 Sen.  Jour.,  ist  Sess.,  i6th  Congr.,  p.  65. 
6  Ibid.,  p.  145,  148. 


28  The  Origin  and  Development  of  the 

not  chosen  by  ballot,  but  that  it  was  accepted  by  the 
senate  on  the  motion  of  one  of  its  members.1 

The  standing  committees,  however,  were  for  many 
years  regularly  chosen  by  ballot  in  accordance  with  the 
rule.  From  1823  to  1833  the  rules  on  the  subject  were 
changed  several  times,  the  senate  apparently  seeking  a 
means  by  which  it  could  avoid  the  tediousness  of  ballot- 
ing and  yet  not  allow  the  appointment  of  its  committees 
to  pass  from  its  control. 

In  the  first  session  of  the  Seventeenth  Congress,  the 
vice  president  being  absent,  a  motion  was  made  for  the 
appointment  of  the  committees  by  the  presiding  officer, 
but  the  vice  president  attending  before  the  motion  came 
to  a  vote,  it  was  postponed.  At  the  next  session  of  con- 
gress, the  vice  president  being  again  absent  and  his  ill- 
ness rendering  his  attendance  improbable,  the  rule  was 
changed  so  as  to  read  :  "  All  committees  shall  be  ap- 
pointed by  the  presiding  officer  of  this  House,  unless 
specially  ordered  otherwise  by  the  Senate."  The  last 
clause  was  probably  added  to  make  it  possible,  if  the 
vice  president  should  attend,  to  return  at  once  to  the 
former  practice.  The  first  session  of  the  Nineteenth 
Congress,  Vice  President  Calhoun  attending,  was  allowed 
to  appoint  the  committees  ;  but  before  the  end  of  the  ses- 
sion a  motion  was  made  and  carried,  with  only  two  dis- 
senting voices,  to  return  to  the  earlier  practice  ;2  and,  at 

1  Mr.  Breeze  said  that  between  1789  and  1820  it  was  not  customary 
for  the  senate  to  choose  its  own  committees  (istSess.,  29th  Congr.,p.  21), 
and  a  rule  given  by  Mr.  Maclay  which  may  have  embodied  the  prac- 
tice of  the  senate  reads  :  "When  a  commitment  is  agreed  upon,  the 
President  (of  the  Senate)  shall  take  the  sense  of  the  Senate  as  to  the 
manner  of  appointing  the  committee,  whether  by  motion   from  the 
Senate,  nomination  from  the  chair,  or  by  ballot ;  which  shall  take 
place  accordingly."     (Rule  13.) 

2  Congr.  Debates,  ist  Sess.,  I9th  Congr.,  pp.  571,  572.    It  was  asserted 
at  the  time  that  the  change  was  not  made  because  Vice  President  Cal- 
houn had  abused  the  power  but  on  general  principles  ;  but  Williams  in 
his  "  Statesman's  Manual "  says  that  the  change  was  made  because  of 
the  improper  use  made  by  Mr.  Calhoun  of  his  power.    (I,  p.  656.) 


United  States  Senate.  29 

the  next  session,  before  the  election  of  committees,  a 
change  was  made  in  the  rules  so  as  to  provide  for  the 
election  of  the  chairman  of  every  committee  separately 
and  by  a  majority  vote,  and  then  for  the  election  of  the 
other  members  of  each  committee  by  a  single  ballot  and 
a  plurality  vote.1 

In  1828  the  rule  was  again  changed  so  as  to  give  the 
appointment  of  the  committees  to  the  president  pro  tern- 
pore^  if  there  was  one,  leaving  the  rule  as  before,  in  case 
the  vice  president  was  in  the  chair.2  The  reason  of  this 
distinction  was  said  to  be  the  irresponsibility  of  the  vice 
president  to  the  senate.3 

This  rule  also  was  found  unsatisfactory,  for,  in  the 
first  session  of  the  Twenty-third  Congress,  the  political 
majority  in  the  senate  having  changed  since  the  last  ses- 
sion, the  president  pro  tempore?  chosen  at  the  previous 
session,  was  of  the  opposite  party  from  the  present  ma- 
jority. The  rule  was,  therefore,  changed  and  the  appoint- 
ment of  the  committees  restored  once  more  to  the  senate 
under  the  former  rule,  which  has  never  been  changed 
since  ;5  except  that  in  the  rules  adopted  in  the  second 
session  of  the  Forty-fourth  Congress,  the  words  "  unless 
otherwise  ordered  "  were  inserted.  Thus  it  is  seen  that 
the  rules  of  the  senate  have  provided  for  the  choice  of 
its  committees  by  ballot  during  all  but  about  seven 
years.  Though  since  1833  the  rules  have  always  provi- 
ded for  the  choice  of  committees  by  ballot,  they  have 
been  set  aside  much  more  frequently  than  followed.  For 

1  Congr.  Deb.,  2d  Sess.,  igth  Congr.,  p.  3. 

2  Sen.  Journal,  2d  Sess.,  2oth  Congr.,  p.  51.     The  vice  president  was 
absent  at  the  opening  of  the  next  two  sessions,  some  thought  design- 
edly (Congr.  Deb.,  ist  Sess.,  23d  Congr.,  22),  the  rule  being  construed 
as  an  intimation  that  the  senate  desired  the  vice  president  to  remain 
away  until  after  its  organization.      Calhoun,  however,  denied  that  he 
had  purposely  been  absent,     (ist  Sess.,  23d  Congr.,  p.  19.) 

»  Congr.  Deb.,  ist  Sess.,  23d  Congr.,  p.  20. 

4  Hugh  L.  White. 

5  Congr.  Globe,  ist  Sess.,  23d  Congr.,  p.  20. 


30  The  Origin  and  Development  of  the 

a  time,  whenever  the  vice  president  was  absent,  the  ap- 
pointment of  the  committees  was  almost  invariably  left 
to  the  president  pro  tempered  Once,  also,  the  appoint- 
ment of  all  the  committees  was  given  to  the  vice  presi- 
dent ;2  and  another  time,  after  the  election  of  four  of  the 
chairmen,  the  appointment  of  the  other  members  of  the 
committees  was  left  to  the  vice  president.3 

At  the  first  session  of  the  Twenty-ninth  Congress,  for 
the  first  time,  a  part  of  the  committees  were  accepted  by 
resolution  ;4  and  at  the  next  session,  after  the  chairmen 
of  six  of  the  committees  had  been  chosen  by  ballot,  a 
list  agreed  upon  by  both  sides  of  the  senate,  in  which 
the  chairman  of  each  committee  and  a  majority  of  its 
members  were  of  the  same  party  as  the  majority  of  the 
senate,  was  read  and  adopted  ;5  a  way  being  thus  found 
at  last  by  which  the  senate  could  avoid  the  tediousncss 
of  balloting,  and  yet  retain  the  control  of  the  commit- 
tees in  its  own  hands.  Since  that  time,  with  few  excep- 
tions, it  has  been  the  custom  to  move  to  suspend  the 

1  At  the  third  session  of  the  25th  Congress  (Congr.  Globe.,  16),  and 
the  first  session  of  the  26th  Congress  (Congr.  Globe,  50,  51),  and  the 
second  session  of  the  same  Congress  (Congr.  Globe,  2,  12),  the  presi- 
dent pro  tempore  appointed  all  the  committees  but  the  chairman  of 
the  committee  on  commerce.     At  the  first  session  of  the  2yth  Con- 
gress (Congr.   Globe,  p.    u),  the  chairmen  of  the  committees  were 
chosen  by  the  senate,  bnt  the  appointment  of  the  other  members  was 
given  to  the  president  pro  tempore.     At  the  third  session  of  the  27th 
Congress  (Congr.  Globe,  38-40),  the  first  session  of  the  28th  Congress 
(Congr.    Globe,    pp.    5,    22),   the  second  session   of   the  same   Con- 
gress (Congr.  Globe,  8,  12),  and  the  second  session  of  the  3ist  Con- 
gress (Congr.   Globe,   p.  7),  the  committees  were  appointed  by  the 
president  pro  tempore. 

2  Congr.  Globe,  2d  Sess.,  25th  Congress,  pp.  9,  12. 

3  Ibid.,  ist  Sess.,  25th  Congr.,  14,  16.      Proposals  for  such  a  course 
made  later  were  rejected.    (Congr.  Globe,  ist  Sess.,   2gth  Congr.,  pp. 
19-21  ;  2d  Sess.,  29th  Congr.,  19.) 

4  Congr.  Globe,  ist  Sess.,  29th  Congr.,  p.  66. 
6  Ibid.,  2d  Sess.,  29th  Congr.,  pp.  19,  30. 


United  States  Senate.  31 

rules,  and  then  to  adopt  a  list  of  the  committees  decided 
upon  in  caucus.1 

It  would  seem  that  the  representation  of  both  parties 
on  the  committees  was  no  new  thing,  for  Mr.  King,  who 
had  served  in  the  senate  since  the  adoption  of  the  con- 
stitution, stated  in  1844  that  it  was  the  invariable  prac- 
tice.2 On  the  other  hand,  Jefferson,  in  his  "  Parliamentary 
Manual  "  says  that  the  British  practice  was  to  refer  a  bill 
to  a  committee  all  of  whom  favored  it  ;3  and,  as  he  does 
not  say  that  the  practice  of  the  senate  was  different,  one 
is  justified  in  inferring  that  it  was  the  same.  With  the 
establishment  of  standing  committees  it  would  of  course 
be  impossible  to  know  in  advance  exactly  what  bills 
were  to  be  referred  to  each  committee,  and  therefore  im- 
possible to  follow  the  principle  laid  down  by  Jefferson. 
It  may  be,  therefore,  that  it  was  then  the  present 
practice  was  established,  and  that  it  was  of  the  standing 
committees  only  which  Mr.  King  was  thinking  when  he 
spoke  of  the  practice  in  the  matter.  When  the  rule  wras 
followed  and  the  committees  were  chosen  by  ballot,  a 
plurality  making  a  choice,  unless  some  previous  arrange- 
ment were  made,  the  result  was  very  uncertain  ;4  but, 
with  the  introduction  of  the  practice  of  adopting  by 
resolution  lists  of  committees  previously  made  out  and 

1  Exceptions  to  this  practice  are  found  in  Congr.  Globe  :  2d  Sess., 
36th  Congr.,  p.  23  ;  ist  Sess.,  3ist  Congr.,  39,  45  ;  2d  Sess.,  3ist  Cougr. 
p.  7  ;  ist  Sess.,  34th  Congr.,  p.  18  ;  3d  Sess.,  37th  Congr.,  p.  1554  ;  2d 
Sess.,  45th  Congr.,  p.   56;  3d  Sess.,  46th  Congr.,  14;  2d  Sess.,  47th 
Congr.,  p.  23. 

2  Benton,  Thirty  Years'  View,  II,  pp.  335,  336. 

3  Section,  XXVI. 

4  Mr.  Hickey,  Chief  Clerk  of  the  senate,  in  a  report  in  1863  said  re- 
garding this  that  it  had  been  found  that,  without  a  previous  consulta- 
tion and  arrangement,  by  the  plurality  principle,  all  the  members  of 
the  committees,  except  the  chairman,  for  whqse  election  a  majority 
was  required,  might  be  obtained  by  a  united  minority,  contrary  to  the 
will  of  the  majority ;  and  that,  on  the  other  hand,  with  such  an  ar- 
rangement on  the  part  of  the  majority,  the  minority  might  be  entirely 
excluded  from  the  committees.     (3d  Sess.,  37th  Congr.,  Sen.  Reports, 
No.  42,  p.  32.) 


32  The  Origin  and  Development  of  the 

decided  upon  in  caucus,  there  was  no  more  difficulty  on 
that  score.  Not  only  have  the  minority  generally  been 
represented  on  the  committees,  but,  as  a  rule,  the  major- 
ity, after  having  made  out  a  list  of  the  committees,  as- 
signing their  own  members  to  the  positions  desired  and 
leaving  blanks  for  the  minority  to  fill  out,  have  sent  this 
list  to  the  minority  for  its  action  ;*  and  Mr.  Pendleton 
said  in  the  Forty-seventh  Congress  that  it  had  become 
the  accepted  custom  for  the  majority  of  the  senate  to 
seek  conference  with  the  minority,  to  discuss  with  them 
not  only  the  members  of  the  minority  who  should  be 
placed  on  each  committee,  but  also  regarding  the  number 
of  representatives  which  the  minority  should  have  and 
the  committees  which  they  should  entirely  control.2 

The  practice  in  regard  to  the  chairmanship  of  com- 
mittees has  not  been  uniform.  Up  to  1827,  when  it  was 
provided  that,  for  the  election  of  the  chairman  of  a 
committee,  a  majority  should  be  required,  while  for  the 
other  members  of  the  committee  a  plurality  of  votes 
only,  there  is  no  mention  of  a  chairman  in  the  rules  of  the 
senate  as  given  in  the  "  Senate  Journal  "  ;  but  Mr.  Maclay 
says  that  the  chairman  of  a  committee  was  the  senator 
of  the  most  northerly  state  of  those  from  which  the 
members  of  the  committee  were  taken.  There  seems, 
however,  to  be  reason  for  doubting  the  correctness  of 
this  rule.3 

]3d  Sess.,  37th  Congr.,  Special,  p.  1554,  statement  of  Mr.  Saulsbury ; 
ist  Sess.,  38th  Congr.,  15,  16. 

2 Special  Sess.,  47th  Congr.,  p.  16. 

3  Rule  12,  Journal  of  Maclay.  If  this  rule  was  observed  it  seems 
strange  that  it  should  have  received  no  notice  from  the  statesmen  of 
the  time,  in  their  letters  or  writings,  and  that  Jefferson  should  not 
have  mentioned  it  in  his  "  Parliamentary  Manual,"  where  he  says  in 
regard  to  the  committees  of  parliament :  "  The  clerk  may  deliver  the 
bill  to  any  member  of  the  committee.  But  it  is  usual  to  deliver  it  to 
him  who  is  first  named."  Moreover,  Jefferson  says  that  the  chair, 
man  of  the  committee  makes  the  report,  but  an  examination  of  the 
"Senate  Journal"  shows  that,  generally,  the  person  who  reported  the 


United  States  Senate.  33 

The  usual  custom  was  to  continue  senators  on  the 
same  committee,  unless  they  desired  change,  and  to  pro- 
mote no  one  over  them  ;  and  the  same  way  with  the 
chairmen.1  This  custom  has  sometimes  led  to  the  pos- 
session of  all  the  important  places  by  senators  from  one 
district,  as  in  the  Thirty-seventh  Congress,  when,  of  the 
twenty-two  committees,  the  chairmanship  of  eleven,  and 
of  these  three  of  the  most  important,  belonged  to  New 
England.  Party  politics,  however,  have  been  allowed  to 
come  in  to  a  certain  extent.  In  the  second  session  of 
the  Thirty-ninth  Congress  three  distinguished  chiefs 
were  stricken  from  their  places  as  chairmen  and  assigned 
the  foot  of  their  committees,  although  the  committees  did 
not  have  charge  of  matters  of  a  political  nature.2  The 
removal  of  Mr.  Sumner  from  the  chairmanship  of  the 
committee  on  foreign  affairs  by  his  own  party,  because 
of  his  opposition  to  the  president,  is  another  example  of 
departure  from  the  rule.  Mr.  Cameron,  his  successor, 
was,  however,  entitled  by  seniority  to  the  place  if  a 
vacancy  should  occur.3 

The  opportunity  for  corruption  and  jobbery  which  is 
offered  by  the  application  of  seniority  of  service  in  one 
case  and  not  in  another,  led  to  a  proposal  in  the  Fifty- 
third  Congress,  which,  however,  was  rejected,  that  unless 
otherwise  ordered  "  the  committees  of  the  Senate  shall 
be  organized  with  reference  to  the  equality  of  the  states, 
and  that  seniority  of  service  shall  give  preference  in 
the  assignment  of  committees  and  chairmanships." 

Of  the  forty-six  standing  committees  of  the  senate,  at 
the  second  session  of  the  Fifty-third  Congress,  twenty- 
bill  was  the  one  first  mentioned  on  the  committee,  and  he  was  not 
always  the  representative  of  the  most  northern  state  represented  on 
the  committee,  though  he  very  frequently  was. 

1  Congr.  Globe,  ist  Sess.,  36th  Congr.,  p.  178  ;  Elaine,  Twenty  Years 
in  Congress,  I,  323  ;  3d  Sess.,  37th  Congr.,  Sen.  Misc/Docs.,  No.  42. 

2 Congr.  Globe,  2d  Sess.,  39th  Congr.,  p.  520. 

3  Elaine,  Twenty  Years,  II,  503,  note. 


34  The  Origin  and  Development  of  the 

one  met  regularly  once  a  week,  the  others  having  no 
regular  time  of  meeting  but  coining  together  when 
called  by  the  chairman. 

The  number  of  members  on  the  standing  committees 
has  varied.  Three  was  the  usual  number  prior  to  1818 
when  the  number  was  raised  to  five  for  all  but  two  com- 
mittees,1 these  being  still  composed  of  but  three  mem- 
bers. Since  then  the  number  of  members  on  the  vari- 
ous committees  has  been  frequently  changed  and  now 
the  number  varies  from  three  to  thirteen,  nine  being  the 
most  usual  number.  Each  senator  usually  serves  on 
from  four  to  six  committees.  The  meetings  of  the  com- 
mittees are  ordinarily  secret,  though  they  may  be  made 
public. 

Frequently  special  subjects  are  referred  to  sub-com- 
mittees or  individuals  to  investigate  and  report  to  the 
committee.  The  committee  may  be  authorized  to  sum- 
mon witnesses  and  to  take  evidence.  The  majority  re- 
port of  the  committee  is  not  signed,  it  being  considered 
as  the  report  of  the  whole  committee.  With  the  major- 
ity report  are  usually  printed  the  views  of  the  minority, 
each  member  of  the  minority  being  privileged  to  set 
forth  his  views. 

The  usual  custom  of  the  senate  has  been  for  the 
members  of  the  committee  of  the  opposite  parties  t<3 
consider  the  bills  together.  Recently,  however,  a  ten- 
dency has  been  manifested  to  adopt  the  practice  followed 
to  a  considerable  extent  in  the  house,  of  the  majority 
and  minority  holding  no  conference  on  the  subject.  Thus, 
in  the  Forty-ninth  Congress,  a  report  was  submitted  by  a 
majority  of  the  committee  which  the  minority  first 
heard  on  the  morning  that  the  report  was  made  to  the 
senate  ;2  and  in  the  second  session  of  the  Fiftieth  Con- 
gress the  tariff  substitute  was  prepared  by  the  Republican 

1  Rules  of  1820,  No.  30. 

2  Congr.  Record,  ist  Sess.,  49th  Congr.,  p.  1584. 


United  States  Senate.  35 

majority  of  the  senate  committee.1  Sometimes,  when  there 
was  need  of  haste,  as  in  the  second  session  of  the  Twenty- 
fifth  Congress,  a  bill  has  been  reported  by  a  committee 
within  twenty-four  hours  after  its  receipt,  although  the 
senate  had  been  in  session  all  the  time,  and  the  committee 
did  not  have  leave  to  sit  during  the  session,  the  bill  having 
been  separately  considered  by  each  member  at  his  desk.2 

The  authorization  of  a  committee  to  sit  during  the 
recess  was  unusual  in  the  early  days,3  but  it  has  now  be- 
come quite  common.  The  early  committees  did  not 
employ  clerks,  but  in  1849  one  was  granted  to  the  com- 
mittee on  printing4  and  soon  after  all  the  other  commit- 
tees obtained  them.5  Each  committee  has  its  calendar 
and  keeps  a  record  of  its  proceedings. 

The  influence  of  committees  on  legislation  has  steadily 
increased  from  the  early  days  when  there  were  no  stand- 
ing committees,  and  motions  were  introduced  on  leave,  a 
committee  being  raised  to  prepare  a  bill  embodying  the 
motion,  until  the  present  time.  This  is  due  to  the  in- 
crease in  the  amount  of  business  to  te  done,  which  made 
it  necessary  constantly  to  rely  more  and  more  on  com- 
mittees. As  early  as  1855  it  was  said  in  the  senate  that 
more  work  was  done  in  the  committees  than  in  the  sen- 
ate ;G  and  in  1857  Mr.  Hamlin  said:  "It  is  through 
committees  to  a  very  great  extent — to  much  the  greatest 
extent — that  the  business  of  the  Senate  is  prepared  and 
presented  to  the  Senate  for  action."7  The  bills  which  are 

1  Congressional  Record,  p.  304. 
"Congr.  Globe,  2d  Sess.,  25th  Congr.,  p.  384. 

aThe  first  instance  was  that  of  a  committee  appointed  to  investigate 
the  affairs  of  the  United  States  bank.     Benton,  II,  p.  305. 

4  ist  Sess.,  3ist  Congr.,  p.  61. 

5  In  1855  nineteen  committees  employed  clerks  and  two  years  later 
all  but  four  committees  were  allowed  them,     (ist  Sess.,  35th  Congr., 
p.  158.)     Now  all  have  them. 

6  Congr.  Globe,  2d  Sess.,  33d  Congr.,  p.  729,  statement  of  Mr.  Clay- 
ton. 

'  Ibid.,  ist  Sess.,  35th  Congr.j  p.  39. 


36  The  Origin  and  Development  of  the 

adversely  reported  are  generally  postponed  without  de- 
bate.3 Now  the  committees  are  the  only  machinery  by 
which  the  senate  investigates  questions  of  law  and  fact,2 
and,  as  Mr.  Voorhees  said  at  the  last  session  of  congress  : 
"  The  final  exercise  of  sovereign  legislative  power  is  oft- 
times  and  to  a  large  extent  performed  by  committees. ":! 
Thus  everything  depends  upon  their  formation  and  in- 
telligent action. 

In  the  appointment  of  other  than  the  standing  com- 
mittees the  rule  has  always  been  the  same,  that  is,  they 
have  been  appointed  by  ballot,  a  plurality  of  votes  elect- 
ing, except  between  1823  an(^  1826  when  they,  as  well 
as  the  standing  committees,  were  appointed  by  the  pre- 
siding officer. 

Conference  committees,  by  usage,  always  consist  of 
three  members  on  each  side.  At  the  head  of  the  senate 
conferees  is  usually  the  man  who  has  had  charge  of  the 
bill  in  the  senate.  The  rules  provide  for  the  appoint- 
ment of  these  committees  by  ballot  unless  otherwise  or- 
dered. Generally  the  conference  committee  is  left  free, 
though  there  have  been  cases  in  which  it  was  instructed.4 
In  an  ordinary  free  conference,  to  which  bills  are  usually 
referred,  the  only  limitation  of  the  committee  is  that  they 
shall  not  put  in  new  matter  which  has  not  been  proposed 
in  either  house.5  The  report  of  a  conference  commit- 
tee is  of  a  privileged  character,  and  can  be  made  at  any 

1  Congr.  Globe,  2d  Sess.,  35th  Congr.,  p.  119.  Also  ist  Sess.,  39th 
Congr.,  p.  3868,  when  in  one  evening  nineteen  adverse  reports  were 
made  by  a  committee  and  accepted  without  debate. 

2 Congr.  Record,  47th  Congr.,  Special  Sess.,  p.  15. 

3  The  rule  which  allows  a  committee  reporting  a  bill  to  amend  it  as 
it  pleases  before  individual  senators  have  a  chance  has  been  influential 
in  increasing  the  power  of  committees. 

4  For  example,  Congr.   Globe,  ist  Sess.,  38th  Congr.,  p.  900,  and 
Congr.  Record,  ist  Sess.,  49th  Congr.,  pp.  7617-7628. 

5  Congr.  Record,  2d  Sess.,  48th  Congr.,  p.  1468.      In  the  first  session 
of  the  49th  Congress  (p.  308),  a  joint  rule,  regulating  this,  was  passed 
by  the  senate. 


United  States  Senate.  37 

time  "  except  when  the  journal  is  being  read,  or  a  ques- 
tion of  order,  or  a  motion  to  adjourn  is  pending,  or  while 
the  senate  is  dividing ;  and,  when  received,  the  question 
of  proceeding  to  the  consideration  of  the  report,  if  raised, 
shall  be  immediately  put,  and  shall  be  determined  with- 
out debate."  The  extensive  powers  exercised  by  com- 
mittees of  conference  at  the  present  time  is  well  known. 
This  power  is  due  mainly  to  the  great  amount  of 
business  to  be  transacted,  and  has  grown  with  its  growth. 
As  early  as  the  first  session  of  the  Thirty-sixth  Congress, 
Mr.  Trumbull  said  :  "  A  practice  has  grown  up  here — 
abominable,  I  may  say — by  which  the  legitimate  duty 
devolving  upon  the  whole  body  is  turned  over  to  a  com- 
mittee of  conference."1  This  state  of  affairs  has  become 
steadily  more  noticeable. 

1  Congr.  Globe,  p.  3028. 


CHAPTER  III. 

THE  SENATE  AS  A   LEGISLATIVE   BODY. 


I.      SECRET  SESSIONS  OF  THE  SENATE. 

WHEN  the  First  Congress  met  at  New  York  in  the  City 
Hall  the  senate  chamber  was  a  wainscoted  room,  about 
forty  feet  square  and  fifteen  high.1  The  senators  were 
seated  in  a  semi-circle  around  the  chair  of  the  vice  pres- 
ident, being  arranged  according  to  states,  the  senators 
from  New  Hampshire  on  the  right  of  the  president 
and  those  from  Georgia  on  the  left.2  As  the  number  of 
senators  was  so  small,  the  transaction  of  business  was 
comparatively  easy,  so  that  but  few  rules  were  needed, 
and  this  gave  rise  to  practices  which,  though  suitable 
and  advantageous  then,  have  become  inconvenient  and 
embarrassing  now  that  the  number  of  members  is  four 
times  as  great  and  the  bulk  of  legislation  vastly  in- 
creased. 

Much  of  the  time  of  the  senate  during  the  first 
session  of  congress  was  necessarily  occupied  with  its 
organization,  and  the  decision  of  the  questions  as  to 

1  Pennsylvania  Packet ',  March  12,  1789. 

2  According  to  Rule  I  given  by  Mr.  Maclay  (Journal  of  Maclay,  p. 
xiii).     It  is  difficult  to  decide  just  what  credence  should  be  given  to 
these  rules  of  Mr.  Maclay  which  were  found  written  upon  the  cover 
of  his  journal,  and  which  differ  in  many  respects  from  those  given  in 
the  senate  journal.     They  are  such  as  might  be  expected  if  a  senator 
had  attempted  to  write  down  from  memory  the  rules  of  the  senate, 
adding  interpretations  which  they  had  received  and  practices  which 
were  followed  though  not  embodied  in  the  rules.     They  sometimes 
contain  in  one  rule  what  in  the  senate  journal  is  given  as  two,  and 
vice  versa.     They  also  contain  entirely  new  matter  for  which  there  is 
often  jio  other  authority  and  which  in  one  case  is  certainly  contrary 
to  fact  (Rule  9),  and  in  two  other  cases  probably  is  so  (parts  of  rules 
7  and  12). 


United  States  Senate.  39 

mode  of  procedure,  etc.,  which  must  come  up  at  the 
establishment  of  a  new  government.  The  holding 
of  its  sessions  with  closed  doors,  which  in  the  light 
of  its  future  development  was,  perhaps,  the  most  im- 
portant step  taken  by  the  senate  at  this  time,  was  pro- 
vided for  by  no  rule  and  seems  to  have  been  entered 
upon  without  debate  and  without  question.  At  that 
time  secret  sessions  of  legislative  bodies  were  not  as  un- 
common as  they  now  are,  and  consequently  the  action  of 
the  senate  attracted  less  attention  than  it  would  now. 
Prior  to  1766,  when  on  the  motion  of  James  Otis  the 
general  court  of  Massachusetts  yielded  to  the  demand  for 
publicity  of  debates,  no  legislative  body  of  America  had 
admitted  the  public  to  its  sessions  ;l  and  the  congress  of 
the  confederation  and  the  convention  for  framing  the 
constitution  had  both  sat  with  closed  doors. 

Nothing  is  said  upon  the  subject  in  the  debates  of  the 
convention,  but  from  a  passage  in  the  "  Federalist "  in 
which  Hamilton  draws  a  favorable  comparison  between 
the  mode  of  appointment  adopted  by  the  constitution  of 
the  United  States  and  that  of  New  York,  where  the 
council  of  appointments  confirmed  nominations  in  secret, 
it  would  se^em  that  open  sessions  were  expected.  On 
the  other  hand,  if  this  were  the  case  it  is  strange  that 
the  sessions  should  have  been  held  in  secret  without  any 
rule  being  made  on  the  subject,  and  apparently  without 
any  question  being  raised.  Even  Washington  did  not 
know  the  reason  which  had  led  the  senate  to  adopt  this 
practice,  but  he  suggests  that  it  may  have  been  to  avoid 
speaking  to  the  gallery,  of  which  there  was  too  much  in 
the  other  house.2 

The  remonstrances  which  were  shortly  made  against 
the  secret  sessions  soon  forced  the  senate  to  consider  the 

1  Eaton,  Secret  Sessions,  p.  12. 

2  Washington,  Works,  vol.  XI,  p.  411.      Letter  to  David  Stuart,  July 
26,  1789. 


40  The  Origin  and  Development  of  the 

subject.  In  the  second  session  of  the  First  Congress  Mr. 
L,ee  of  Virginia,  in  obedience  to  his  instructions,  sub- 
mitted a  resolution  for  the  opening  of  the  doors  of  the 
senate  and  supported  it  by  a  speech  occupying  two  days. 
No  one  replied  and  when  the  question  was  put  Mr.  Lee 
was  supported  by  but  two  votes.  Nevertheless  the  sub- 
ject was  brought  up  again  and  again.  Jealousies  of  the 
senate  began  to  arise  in  the  minds  of  the  people  on 
account  of  its  secret  sessions.1  It  was  urged  that  secret  ses- 
sions destroyed  the  best  security  against  mal-administra- 
tion  and  annihilated  the  influence  of  the  people  over 
one  branch  of  the  government  ;2  and,  finally,  in  the  first 
session  of  the  Third  Congress  a  motion  for  opening  the 
doors  when  the  senate  was  sitting  in  its  legislative  capa- 
city, except  in  such  cases  as  in  the  opinion  of  the  senate 
required  secrecy,  was  passed,3  and  at  the  next  session  the 
doors  were  opened  to  the  public. 

The  debates,  however,  were  still  but  little  reported 
and,  though  the  papers  of  the  time  generally  contained 
daily  accounts  of  the  proceedings  of  the  house  when 
congress  was  in  session,  it  is  only  rarely  that  those  of 
the  senate  were  referred  to.  A  further  advance  towards 
publicity  was  made  in  1802,  when  it  was  agreed  to  admit 
a  stenographer  to  the  floor  of  the  senate.4 

II.      QUORUM   OF  THE  SENATE. 

The  first  congress  under  the  new  constitution  was 
slow  in  assembling  and  it  seemed  at  first  that  the  irreg- 
ularity of  attendance  prevalent  in  the  old  congress  was 
to  reappear  in  the  new.  But  eight  senators  were  in  their 
places  on  the  fourth  of  March ;  and,  in  spite  of  two  cir- 
cular letters  to  the  absent  members,  one  of  March  the 

'Annals  of  Congr.,  3d  Congr.,  ist  Sess.,  p.  34. 

2  Annals  of  Congr.,   2d  Sess.,  2d  Congr.,  pp.  625,  626;  ist  Sess.,  3d 
Cougr.,  pp.  33,  34. 
*Ibid>,  ist  Sess.,  3d  Congr.,  p.  46. 
4 Sen.  Journal,  ist  Sess.,  yth  Congr.,  vol.  Ill,  pp.  165-166. 


United  States'  Senate.  41 

eleventh  and  the  other  a  week  later,  a  quorum  was  not 
secured  until  April  sixth.  Those  who  had  appeared  at 
the  appointed  time,  full  of  interest  and  eager  anticipa- 
tion, felt  no  little  chagrin  at  this  apparent  indifference. 
There  were,  however,  excellent  reasons  for  the  delay. 
The  New  York  senators  had  not  yet  been  elected  and 
others  were  detained  by  sickness,  while,  as  Madison  wrote 
to  Jefferson,  "  The  season  of  the  year,  the  peculiar  bad- 
ness of  the  weather,  and  the  short  interval  between  the 
epoch  of  election,  and  that  of  meeting  "  formed  a  better 
apology  for  the  delay  than  wpuld  be  likely  to  occur  to 
one  on  the  other  side  of  the  Atlantic.1  In  succeeding  ses- 
sions quorums  were  obtained  with  but  little  or  no  delay. 

In  order  to  keep  a  quorum  after  it  was  once  obtained 
a  rule  was  adopted  providing  that :  "  No  member  shall 
absent  himself  from  the  service  of  the  Senate  without 
leave  of  the  Senate  first  obtained  "  ;2  and,  according  to 
Mr.  Maclay,  violation  of  this  rule  was  to  be  punished  by 
writing  on  a  slip  of  paper  the  name  of  Jhe  senator  so 
doing,  together  with  the  nature  of  his  transgression,  and 
annexing  it  to  the  rules  which  hung  in  the  senate  cham- 
ber, there  to  remain  until  the  senate,  on  his  application 
or  otherwise,  should  take  action  on  the  same.3 

In  the  early  days  senators  usually  asked  for  leave  of 
absence,  and  numerous  entries  regarding  it  are  found  in 
the  journals  ;4  occasionally,  also,  notices  of  senators  ab- 
sent without  leave  appear.5  Gradually,  however,  the 

1  Madison,  Works,  I,  p.  458.     Letter  of  March  29,  1789. 

2  Annals  of  Congr.,  ist  Sess.,  ist  Congr.,  p.  21,  Rule  XIX. 
:! Journal  of  Maclay,  p.  xiv,  Rule  XVI. 

4  Benton  says  :  "In  the  first  age  of  the  government,  no  member  ab- 
sented himself  from  the  services  of  the  House  to  which  he  belonged 
without  first  asking  and  obtaining  its  leave,  or  if  called  off  suddenly, 
a  colleague  was  engaged  to  state  the  circumstances  to  the  House  and 
ask  the  leave.     (Thirty  Years'  View,  II,  178,  179.) 

5  At  the  second  session  of  the   Fifth   Congress   a  resolution   was 
adopted  two  months  before  the  end  of  the  session,  which  provided 
"That  the  Secretary  of  the  Senate  be  directed  to  write  to  all  such 


42  The  Origin  and  Development  of  the 

rule  came  to  be  disregarded.  Benton  says  that  he  recol- 
lects "  no  instance  of  leave  asked  since  the  last  of  the 
early  members,  the  Macons,  Randolphs,  Rufus  Kings," 
etc.  ;]  and  by  the  Forty-seventh  Congress  the  rule  had  so 
long  been  disregarded  that  when  a  senator  asked  for 
leave  of  absence  a  question  was  raised  as  to  the  necessity 
of  his  so  doing,  and  the  vice  president  stated  that,  though 
the  rule  was  perfectly  explicit,  it  had  not  been  the  prac- 
tice of  the  senate  to  enforce  it.2 

Kven  while  pretty  carefully  observed,  the  rule  was 
found  to  be  insufficient  for  the  purpose  of  maintaining  a 
quorum.  Thus  when  such  an  important  matter  as  the 
Jay  treaty  was  before  the  senate  it  was  with  difficulty 
that  a  sufficient  number  of -senators  were  kept  together 
to  decide  it  ;3  and  in  the  second  session  of  the  Fifth  Con- 
gress so  many  senators  were  absent,  two  months  before 
the  end  of  the  session,  that  the  secretary  was  directed  to 
write  to  those  absent  without  leave,  requesting  their  im- 
mediate attendance.4  The  same  session  the  rules  were 
amended  so  as  to  authorize  a  number  less  than  a  quorum 
to  send  the  sergeant-at-arms  after  any  or  all  the  absent 
members  at  the  expense  of  the  absentees,  unless  an  ex- 
cuse for  non-attendance,  deemed  sufficient  by  the  senate, 
were  made.5 

Attempts  made  under  this  rule  to  move  the  compul- 
sory attendance  of  absentees  were  held  out  of  order  with- 
out a  day's  notice,  and  in  1877  the  rules  were  changed 

Senators  as  are  absent  without  leave,  or  whose  leave  of  absence  has 
expired,  requesting  their  immediate  attendance."  (Annals  of  Congr., 
P- 558.) 

'Thirty  Years'  View,  II,  178,  179. 

2 Congr.  Record,  ist  Sess.,  47th  Congr.,  p.  4401. 

3  Goodrich  writes  to  Wolc.ott :  "It  has  wounded  us  extremely  that 
no  remonstrances  or  respect  for  public  business  have  been  able  to 
keep  Senators  and  members  of  our  House  here  a  few  days  or  a  week." 
(Gibb's  Administration  of  Washington  and  Adams,  I,  p.  343.) 

4  Annals  of  Congress,  2d  Sess.,  5th  Congr.,  p.  558. 

5  Annals  of  Congress,  2d  Sess.,  5th  Congr.,  p.  589,  Rule  19. 


United  States  Senate.  43 

so  as  to  give  to  the  senate  the  u  power  to  request,  and, 
when  necessary,  to  compel  the  attendance  of  the  absent 
Senators."1 

Previously  an  attempt  had  been  made  to  decrease  the 
the  number  of  absentees  by  the  publication  in  the 
Congressional  Globe  of  the  names  of  those  absent  at  every 
vote  on  which  the  yeas  and  nays  were  recorded.  This  rule, 
adopted  in  i864,2  was  repealed  in  1875^  but  the  names 
of  those  absent  on  every  roll  call  have  nevertheless  still 
been  published. 

Attempts  were  also  made  to  secure  the  attendance  of 
senators  by  a  deduction  from  their  salary  for  absences. 
This  was  first  tried  in  1816,  when  provision  was  made 
for  a  deduction  from  the  salary  of  all  those  absent  either 
at  the  beginning  or  during  the  session  of  the  senate, 
except  in  case  of  sickness.4  This  law,  however,  was  re- 
pealed in  iSiy,5  and  the  law  passed  in  1818  had  little  or 
no  effect  in  restraining  absences  ;  for,  though  it  provided 
that  senators  should  receive  pay  only  for  days  when  they 
attended  the  senate,  except  when  their  absence  was  due 
to  certain  specified  causes,  these  causes  were  so  all  em- 
bracing6 as  to  make  the  restriction  of  little  use,  and  its  effi- 
cacy was  sometimes  still  further  diminished  by  the  passage 
of  a  resolution  at  the  end  of  the  session  providing  that  sen- 
ators who  did  not  take  their  seats  at  the  opening  of  the 
session  "  by  reason  of  sickness  of  themselves  or  families, 

1  Rule  3.  Under  this  rule  it  was  held  necessary  to  first  request  the 
attendance  of  absent  senators.     (Congr.  Record,  3d  Sess.,  45th  Congr., 
p.  1847;  2d  Sess.,  sist  Congr.,  p.  1437.) 

2  Congr.  Globe,  ist  Sess.,  38th  Congr.,  p.  2090. 

3  Ibid.,  2d  Sess.,  43d  Congr.,  p.  1669. 

4 Statutes  at  Large,  vol.  3,  pp.  257,  258,  ist  Sess.,  I4th  Congr.,  chap. 
XXX. 

5 Statutes  at  Large,  vol.  3,  p.  345,  2d  Sess.,  I4th  Congr.,  chap.  IX. 

6 Statutes  at  Large,  vol.  3,  p.  404,  ist  Sess.,  I5th  Congr.,  chap.  V. 
The  law  provided  that  if  a  senator  were  detained  by  sickness  on  his 
journey  or  if  he  were  unable  to  attend  the  senate  after  his  arrival,  he 
should  nevertheless  receive  the  regular  per  diem  allowance. 


44  The  Origin  and  Development  of  the 

providential  causes  or  necessary  business,"  should  never- 
theless receive  the  regular  per  diem  allowance.1 

The  rule  adopted  in  1818  remained  in  force,  though 
attempts  were  frequently  made  to  change  it,  until  1856, 
when  it  was  repealed,  and  a  rule  adopted  which  pro- 
vided that  a  deduction  from  the  salary  of  any  senator 
should  be  made  for  every  day's  absence  unless  he 
should  assign  as  a  reason  the  sickness  of  himself  or 
family.2  In  1862,  in  order  to  keep  senators  at  their 
places  toward  the  end  of  the  session,  it  was  further  pro- 
vided that  when  a  senator,  in  anticipation  of  the  adjourn- 
ment of  the  senate,  withdrew  from  his  seat  without 
leave  and  did  not  return,  he  should  forfeit,  in  addition 
to  the  sum  deducted  for  each  day's  absence,  an  amount 
equal  to  the  mileage  allowed  for  his  return  home/'5  In 
1866,  when  the  law  regarding  salaries  was  again  changed, 
no  deduction  for  absences  was  provided  for. 

During  most  of  the  war  the  question  of  a  quorum 
was  of  especial  importance,  for  it  had  not  then  been  de- 
cided whether  the  clause  of  the  constitution  which  pro- 
vides that  "  a  Majority  of  each  [house]  shall  constitute  a 
Quorum  ",4  meant  a  majority  of  all  those  who  by  any 
possibility  might  be  elected,  or  only  a  majority  of  those 
who  had  been  elected  and  were  entitled  to  take  their 
seats.  If  the  former  was  held  then,  after  the  secession 
of  the  southern  states,  the  absence  for  any  reason  of  a 
very  few  senators  would  have  been  enough  to  break  a 
quorum.  The  house  had,  at  the  first  session  of  congress 
after  the  secession  of  the  southern  states,  decided  that  a 
quorum  of  the  house  was  a  majority  of  those  who  had 
been  elected  and  were  entitled  to  take  their  seats.  Pre- 
cedents could  be  found  in  the  practice  of  the  senate  in 

1  Congr.  Globe,  ist  Sess.,  33d  Congr.,  p.  2092. 

2 Statutes  at  Large,  vol.  u,  p.  48,  ist  Sess.,  34th  Congr.,  chap.  123. 

3 Congr.  Globe,  2d  Sess.,  37th  Congr.,  pp.  3377-8. 

4  Art.  I,  sec.  V. 


United  States  Senate,  t  45 

support  of  each  interpretation.  At  the  first  session  of 
the  First  Congress,  there  being  eleven  states  in  the  union, 
entitled  to  twenty-two  senators,  but  the  New  York  sena- 
tors not  yet  having  been  elected,  eleven  wrere  not  con- 
sidered a  quorum.  The  next  session,  however,  the  op- 
posite interpretation  wras  given.  There  being  twelve 
states,  entitled  to  twenty-four  senators,  and  one  of  the 
senators  having  recently  died,  twelve  were  considered  a 
quorum.  The  next  time,  November  sixth,  1804,  under 
exactly  similar  circumstances  the  opposite  was  held,  and  in 
1812  under  similar  circumstances  this  latter  decision  was 
adhered  to  ;!  but  finally  in  1864  a  resolution  was  adopted 
declaring  that  a  quorum  of  the  senate  consisted  of  a 
majority  of  the  senators  duly  chosen.2 

The  difficulty  in  maintaining  a  quorum,  due  at  first 
only  to  senators  absenting  themselves  from  attendance 
in  the  senate,  has  been  increased  in  later  times  by  the 
growth  of  two  customs,  unknown  in  the  earlier  days, 
namely,  pairing  off  and  refusing  to  vote,  the  object  of 
the  latter  generally  being  to  break  a  quorum. 

The  custom  of  pairing  off  was  long  in  reaching  the 
senate.  Mr.  Benton  says  that  the  first  instance  in  the 
house  of  representatives  when  being  "  paired  "  was  given 
as  a  reason  for  not  voting  was  in  1840,  and  that,  during 
the  thirty  years  he  was  in  the  senate,  he  had  never  seen 
an  instance  of  it ;  but,  says  he,  "  the  practice  has  since 
penetrated  that  body ;  and  '  pairing  off '  has  become  as 
common  in  that  House  as  in  the  other.  As  a  conse- 
quence, the  two  Houses  are  habitually  found  voting  with 
deficient  numbers — often  to  the  extent  of  a  third — often 
with  a  bare  quorum."3 

The  pair  usually  extended  only  to  political  questions, 
so  that  a  senator  who  was  paired,  and  in  the  senate,  could 

1  Congr.  Globe,  2d  Sess.,  37th  Cougr.,  p.  3191,  for  list  of  cases. 
2 Congr.  Globe,  ist  Sess.,  38th  Congr.,  p.  2087. 
•  Benton,  Thirty  Years'  View,  II,  p.  178. 


46    •  The  Origin  and  Development  of  the 

vote  on  a  non-political  question  or  on  a  roll  call.  Conse- 
quently there  might  appear  to  be  a  quorum  present  at 
all  times,  except  when  the  yeas  and  nays  were  demanded 
on  a  political  question.  The  annoyance  in  keeping  a  quo- 
rum arising  from  this,  recently  led  to  a  proposal  to  count, 
for  the  purposes  of  a  quorum,  all  senators  present  and 
paired.1 

The  first  rules  adopted  in  the  senate  provided  that 
every  member  present  in  the  senate,  when  the  yeas  and 
nays  were  called,  should  vote,  unless  he  were  excused 
for  special  reasons  ;2  and,  under  this  rule,  it  was  for  some 
time  the  practice  to  allow  senators  to  vote  or  not  as  they 
pleased,  when  a  quorum  was  present.3  Beginning  with 
about  1850  efforts  were  occasionally  made  to  compel  sen- 
ators to  vote.4  These  attempts,  however,  were  so  few 
that  in  the  Forty-sixth  Congress  it  was  stated  that :  "  The 
practice  of  the  Senate  in  permitting  its  members,  with- 
out question,  or  challenge,  to  withhold  their  votes,  when- 
ever they  have  thought  fit  to  do  so,  has  been  so  uniform 
and  unbroken,  that,  so  far  as  precedents  can  make  it  so,  it 
has  become  an  absolute  parliamentary  right,  and  cannot 
be  questioned  without  reversing  the  steady  practice  upon 
which  the  members  of  the  body  have  a  right  to  rely  as 
their  protection  in  the  exercise  of  their  discretion  in 
giving  or  withholding  their  votes."5  Ordinarily,  when 
a  senator  refrained  from  voting,  no  notice  would  be  taken 
of  it ;  and  it  was  only  when  attention  was  called  to 
the  fact  by  some  one  that  the  senate  would  have  to 

'  Congr.  Record,  ist  Sess.,  53d  Congr.,  p.  2536. 

2  Rule  XI. 

3  Statement  of  the  vice  president  in  1851,  Congr.  Globe,  2d  Sess., 
3ist  Congr.,    p.  248. 

4  For  example,  in  1851,  2d  Sess.,  3ist  Congr.,  p.  248 ;  also  $d  Sess., 
4ist  Congr.,  p.  1603,  and  ist  Sess.,  46th  Congr.,  p.  2147. 

5  Congr.  Record,  3d  Sess.,  46th  Congr.,  p.  2423. 


United  States  Senate.  47 

vote  whether  or  not  to  excuse  the  member.1  There  was, 
however,  no  provision  for  compelling  a  senator  to  vote 
if,  after  the  senate  had  voted  not  to  excuse  him,  he  should 
still  refuse  to  vote,  and  it  has  been  repeatedly  held  that 
it  could  not  be  done.2  A  decision  of  the  vice  president 
in  the  first  session  of  the  Forty-sixth  Congress,  that  on 
the  question  of  excusing  a  senator  from  voting,  a  quo- 
rum must  be  present,  made  it  impossible  to  obtain  a  quo- 
rum by  refusing  to  excuse  a  senator  from  voting.3  A 
ruling  made  at  the  same  time  to  the  effect  that  the  fact 
of  no  quorum  voting  was  not  conclusive  evidence  that 
there  was  no  quorum  present,  but  that  the  chair  had  a 
right  to  count  the  senate  to  ascertain  and,  if  he  discov- 
ered a  quorum  present,  business  might  be  proceeded 
with,4  greatly  diminished  the  efficiency  of  this  means  of 
retarding  business,  by  making  it  possible  to  proceed  with 
debate,  though  not  to  a  vote,  should  a  quorum  be  present 
in  the  senate,  even  though  a  quorum  was  not  voting. 

A  decision  of  the  second  session  of  the  Fiftieth  Con- 
gress,5 that  after  a  vote  showing  no  quorum,  and  a  roll 
call  showing  the  presence  of  one,  it  was  not  in  order  to 
move  the  sergeant-at-arms  to  request  the  attendance  of 
absent  senators,  made  it  impossible  to  bring  to  a  decis- 
ion any  question  on  which  the  yeas  and  nays  were  de- 
manded and  for  which  a  quorum  was  necessary,  if  sena- 
tors, by  remaining  in  the  senate  and  yet  refusing  to  vote, 

1  When  this  began  to  be  done  occasionally,  questions  arose  as  to  the 
time   at  which  attention  should  be  called  to  the  fact,  etc.    (Congr. 
Record,  2d  Sess.,  3ist  Congr.,  p,  248  ;  3d  Sess.,  4ist  Congr.,  p.  1603), 
which  finally  led  to  the  adoption  of  a  rule  regulating  it.     (Rule  17, 
adopted  in  1877. ) 

2  ist  Sess.,  46th  Congr.,  2147  ;  3d  Sess.,  46th  Congr.,  2423.     In  1879 
an  unsuccessful  attempt  was  made  to  compel  a  .senator  to  vote  by  or- 
dering the  sergeant-at-arms  to  request  his  attendance,     (ist  Sess.,  46th 
Congr.,  p.  2147.) 

3  Congr.  Record,  ist  Sess.,  46th  Congr.,  p.  2175. 
*  Ibid.,  2174,  2175. 

a  Congressional  Record,  2d  Sess.,  5oth  Congress,  p.  1043. 


48  The  Origin  and  Development  of  the 

chose  to  break  a  quorum.  The  senate  would,  however, 
still  be  entitled  to  proceed  with  debate.1  Proposals  made 
providing  that,  when  a  quorum  was  present  though  not 
voting,  senators  present  and  not  voting  should  be  entered 
in  the  journal  and  counted  for  a  quorum,  and  the  vote 
announced  accordingly2,  have  not  been  brought  to  a  vote. 

If  there  be  no  call  for  the  yeas  and  nays  and  no  one 
calls  attention  to  the  lack  of  a  quorum,  business  may  go 
on  indefinitely,  and  indeed  much  of  the  time  now  a  quo- 
rum is  not  present  in  the  senate.  Especially  is  this  the 
case  when  a  debate  is  going  on.  The  number  of  sena- 
tors in  the  chamber  scarcely  averages  twenty-five  on 
such  occasions,  though  if  there  is  a  roll  call  a  sufficient 
number  of  senators  to  constitute  a  quorum  will  usually 
assemble  from  various  portions  of  the  capitol.  In  the 
early  years,  if  the  rule  given  by  Mr.  Maclay  may  be 
trusted,  this  was  not  the  case,  a  withdrawal  from  the 
senate  chamber  for  more  than  a  quarter  of  an  hour  be- 
ing punished  in  the  same  manner  as  neglect  of  attend- 
ance during  a  session.3 

The  absenting  of  themselves  by  senators  in  order  to 
escape  the  responsibility  of  a  vote  is  not  a  matter  of  re- 
cent occurrence,  examples  of  it  being  found  in  very  early 
times. 

III.      ORDER   OF   PROCEDURE. 

In  the  early  congresses  the  regular  hour  of  meeting 
seems  to  have  been  eleven  A.  M.,  and  the  length  of  the 
session  ordinarily  about  four  hours.4  Now,  however,  for 
a  long  time,  twelve  o'clock  has  been  the  usual  hour  for 
assembling  and  the  length  of  the  session  about  five 
hours ;  but,  as  business  becomes  more  pressing  toward 

1  Congr.    Record,    ist  Sess.,  5  ist  Congr.,  p.  3468,  statement  of  Mr. 
Hoar. 

2  Ibid.,  ist  Sess.,  5ist  Congr.,  p.  3704  ;  ist  Sess.,  53d  Congr.,  p.  2641. 
3Journal  of  Maclay,  p.  xiv,  Rule  XVI. 

4  Washington,  Works,  XI,  p.  483,  note.  Mr.  Maclay  says  that  it  was 
often  not  more  than  an  hour. 


United  States  Senate.  49 

the  middle  or  end  of  a  session,  the  hour  is  changed  to 
eleven  and,  when  more  time  still  is  needed,  to  ten ;  and 
it  is  sometimes,  for  a  short  time,  even  put  as  early  as 
nine.  The  session  is  also  lengthened  at  the  other  end 
by  taking  a  recess  and  holding  an  evening  session.  Pro- 
posals for  thus  lengthening  the  session  are  almost  always 
objected  to  by  some  on  the  ground  that  it  leaves  no  time 
for  committee  work  or  the  examination  of  bills ;  and  the 
evening  session  often  proves  of  no  avail,  through  the 
inability  to  obtain  a  quorum,  and  is  usually  occupied  by 
some  one  or  two  persons  who  wish  to  make  speeches,  no 
action  of  the  senate  being  taken. 

During  the  early  part  of  the  session  the  senate  almost 
always  adjourns  over  Saturday  and  sometimes  Friday 
also,  and  even  Thursday  occasionally,  this  being  more 
frequent  in  the  early  days  of  the  senate.  When  more 
time  is  required,  however,  the  senate  meets  every  day  of 
the  week  except  Sunday,  and  sometimes  at  the  end  of 
the  session  even  that  day  is  not  given  to  rest. 

As  is  but  natural,  even  in  the  early  days  when  no 
more  business  came  before  the  senate  than  it  could  con- 
veniently transact,  there  was  some  little  hurry  at  the 
end  of  the  session.-  Mr.  Maclay  writes  in  his  journal  for 
March  second,  of  the  third  session  of  the  First  Congress, 
that  more  business  was  hurried  through  the  senate  that 
day  than  in  a  month  of  former  sessions ;  and  of  the  next 
day  he  says  :  u  The  House  seemed  in  a  continual  hurri- 
cane. Speaking  would  have  been  idle,  for  no  one  would 

or  could  hear It  was  patching,  piecing, 

altering  and  amending,  and  even  originating  new  busi- 
ness. .  .  ."  The  senate  met  again  at  six  o'clock. 
"  Fourteen  resolves  were  proposed  and  carried  through," 
and  then,  according  to  Mr.  Maclay,  the  confusion  became 
so  great  that  he  was  unable  to  tell  what  was  being  done.1 

At  the  next  session   there  was  business  enough   to 

'Journal  of  Maclay,  409-411. 


50  The  Origin  and  Development  of  the 

require  evening  sessions  on  the  last  two  days  and,  from 
that  time  on,  the  crowding  of  bills  to  the  end  of  the 
session  becomes  more  and  more  noticeable. 

Sometimes  bills  would  be  introduced  and  passed 
through  all  their  stages,  under  a  suspension  of  the  rules, 
in  one  day,  but  this  was  not  often  done,  as  the  senate 
was  usually  fully  occupied  in  considering  bills  already 
somewhat  advanced  and  in  action  on  conference  re- 
ports and  bills  sent  it  from  the  other  house,1  As 
early  as  the  Fourth  Congress  this  press  was  felt 
sufficiently  to  lead  to  a  proposal  for  a  rule  forbid- 
ding the  origination  of  a  law  of  general  importance 
within  the  last  ten  days  of  the  session,  and  declaring 
that  the  senate  would  act  on  none  received  from  the 
house  within  that  time.2  The  rule,  however,  was  not 
adopted  and  the  amount  of  business  transacted  on  the 
last  days  of  the  session  continued  to  increase.  The  edi- 
tor of  the  Congressional  Debates  says  in  1825:  "Very 
little  debate  usually  takes  place  within  the  last  ten  days 
of  a  Session,  the  time  of  both  Houses  being  employed  in 
perfecting  business  already  matured  by  the  committees, 
etc.,  .  .  .  principally  upon  private  bills,  which  seldom 
elicit  more  than  a  passing  remark  from  the  chairman  of 
the  committe  which  reported  each  bill,  and  sometimes 
not  even  that.  We  have  known  in  the  last  week  of  the 
Session,  as  many  as  forty  bills  pass  in  one  day ;  "  but 
these  pass  without  debate.3 

Mr.  Clay  said  that  nearly  all  the  business  of  the  last 
session  of  the  Twenty-fifth  Congress  was  done  in  the  last 
thirty  days  of  the  session  ;4  and  Mr.  Hale,  in  the  first 
session  of  the  Thirty-fourth  Congress,  said  that  thirteen 
years  of  experience  in  the  senate  confirmed  his  idea  that 

1  Bills  were  lost  at  every  session  for  lack  of  time. 

2  Annals  of  Congr.,  2d  Sess.,  4th  Congr.,  pp.  1576,  1577. 

3  Congr.  Debates,  vol.  I,  2d  Sess.,  i8th  Congr.,  pp.  741-742,  note. 

4  Congr.  Globe,  ist  Sess.,  26th  Congr.,  p.  251. 


United  States  Senate.  51 

all  the  business  of  the  session,  irrespective  of  its  length, 
was  done  in  the  last  two  weeks  of  the  senate, — a  theory 
which  would  seem  to  be  justified  by  the  passage,  in  one 
morning,  of  fifty  bills  of  which  no  one  knew  the  subject 
except  the  senator  who  moved  to  take  them  up.1  In  the 
Sixteenth  Congress  seventy  or  eighty  bills  were  signed 
between  eight  at  night  of  the  last  day  of  the  session  and 
the  next  morning ;  and,  on  one  occasion,  seven  laws 
passed  their  three  readings  in  ten  minutes.2 

In  order  to  prevent  a  repetition  of  this  in  the  future, 
two  rules  were  added  by  the  Seventeenth  Congress  to  the 
joint  rules.  The  first  provided  that :  "  No  bill  that  shall 
have  passed  one  House  shall  be  sent  for  concurrence  to 
the  other  on  either  of  the  three  last  days'  of  the  session  ; " 
and  the  second  that :  "  No  bill  or  resolution  that  shall 
have  passed  the  House  of  Representatives  and  the  Sen- 
ate shall  be  presented  to  the  President  of  the  United 
States,  for  his  approbation,  on  the  last  day  of  the 
session."3 

Had  legislation  been  conducted  in  accordance  with 
these  rules  there  would  certainly  have  been  a  considera- 
ble improvement ;  but,  at  almost  every  session  there- 
after, while  the  joint  rules  were  in  force,  one  or  both  of 
the  rules  would  be  suspended  in  favor  of  certain  or  all 
the  bills  of  the  session.  Thus,  of  142  bills  passed  in 
1832-33,  90  were  signed  under  suspension  of  the  rules. 
At  first  it  was  held  that  these  rules  could  be  suspended 
whenever  a  majority  wished,  without  a  day's  notice  ;4 
but,  in  1836,  it  was  held  that  it  required  unanimous  con- 
sent to  consider  a  resolution  from  the  house  suspending 
the  rules  on  the  same  day  that  it  was  received.5  In  1852 

1  Congr.  Globe,   ist  Sess.,  33d  Congr.,    p.   2214,    statement  of   Mr. 
Pratt. 
?  Annals  of  Congress,  ist  Sess.,  ryth  Congr.,  p.  273. 

3  Annals  of  Congr.,  ist  Sess.,  iyth  Congr.,  vol.  I,  p.  143. 

4  Congr.  Dab.,  vol.  VII,  2d  Sess.,  2ist  Congr.,  p.  334. 

ft  Ibid.,  vol.  XII,  part  ii,  ist  Sess.,  24th  Congr.,  p.  1937. 


52  The  Origin  and  'Development  of  the 

the  rules  were  amended  so  as  to  provide  that  such  a  mo- 
tion should  u  always  be  in  order,  be  immediately  consid- 
ered and  decided  without  debate."1 

Thus  matters  remained  until  the  Forty-fourth  Congress, 
when  it  was  decided  in  the  senate  that  the  joint  rules 
did  not  hold  over  from  one  congress  to  the  next,  and  a 
joint  resolution  accordingly  passed  re-adopting  those  of 
the  previous  session.2  The  house,  however,  seems  to 
have  thought  differently  ;  at  least  it  did  not  adopt  the 
resolution  sent  it  by  the  senate,  and,  at  the  end  of  the 
session,  sent  up  a  resolution  for  the  suspension  of  the 
joint  rules.  The  senate  refused  to  act  upon  this,  sending 
to  the  house  a  resolution  stating  that,  in  their  opinion, 
there  were  no  joint  rules.3  Thus,  since  1876,  there  has 
not  even  been  the  restraint  of  the  sixteenth  and  seven- 
teenth joint  rules  on  the  pushing  of  important  business 
to  the  end  of  the  session.4 

To  gain  more  time  at  the  end  of  a  session,  the  date  of 
adjournment  is  frequently  extended  at  those  sessions 
whose  termination  is  not  fixed  ;  and,  in  the  latter  case,  a 
few  hours  are  sometimes  obtained  by  turning  back  or 
stopping  the  senate  clock  so  that  business  can  be  done 
after  midnight  of  March  third,  the  time  at  which  it 
seems  at  first  to  have  been  generally  supposed  that  con- 
gress ended.5 

At  the  second  session  of  the  Thirtieth  Congress,  when 
objections  were  made  to  the  continuation  of  the  session 
after  twelve  o'clock,  the  objections  were  overruled,  and 

1  Congr.  Globe,  ist  Sess.,  32d  Congr.,  p.  1288,  Rule  26. 

2  Congr.  Record,  ist  oess.,  44th  Congr.,  p.  520. 
3 Ibid.,  p.  5567- 

4  It  would  seem  that  the  senate  no  longer  wished  to  be  restrained  by 
these  rules,  for  the  joint  rules  which  the  senate  has  since  adopted, 
but  which  have  not  been  agreed  to  by  the  house,  have  contained  no 
rules  corresponding  to  the  old  i6th  and  I7th  rules. 

5Benton,  Thirty  Years'  View,  I,  p.  555. 


United  States  Senate.  53 

the  session  continued  until  7  A.  M.  of  March  fourth  •/  and, 
at  the  next  congress,  it  was  decided  that  the  term  of 
senators  did  not  expire  till  noon  of  March  fourth.2 

The  disorder  which  often  prevailed  in  the  senate,  near 
its  close,  when  there  was  much  more  business  to  be  trans- 
acted than  could  possibly  be  got  throiigh  with,  and  when 
everyone  wished  to  secure  the  passage  of  his  pet  project, 
was  often  great.  Mr.  King,  in  taking  the  chair  of  the 
senate,  March  3,  1841,  said  that:  "  He  must  be  per- 
mitted to  say  that  he  had  witnessed,  on  several  occasions, 
at  the  close  of  the  session  of  congress,  a  degree  of  excite- 
ment which  did  not,  in  his  opinion,  comport  with  the 
grave  duties  of  the  senate,  and  which  was  calculated  to 
impair  the  weight  of  their  deliberations,  and  was  not 
calculated  to  facilitate  the  dispatch  of  their  business  . 
.  .  .  if,  unfortunately,  there  should  be  any  departure 
from  the  strict  order,  he  should  feel  it  his  duty  to  check 
it  instantly."3  The  talking  and  confusion  on  the  floor, 
which  makes  it  difficult  to  get  attention,  and  the  scramble 
of  six,  eight,  or  ten  senators  for  the  floor,  in  more  recent 
times,  is  notorious. 

After  the  reading  of  the  journal,  it  has  always  been 
the  custom  to  devote  a  certain  amount  of  time,  usually 
an  hour,  to  the  despatching  of  matters  for  preparing  and 
expediting  business.  At  first  there  was  no  rule  on  the 
subject,  but  Jefferson  in  his  "  Parliamentary  Manual  "  4 
says  that  such  was  the  practice  of  the  senate,  and  that 
no  bills  were  put  on  their"  passage  until  twelve  o'clock. 
A  rule,  adopted  in  1834,  which  provided  for  the  presen- 
tation of  petitions  and  reports  from  standing  committees 
after  the  reading  of  the  journal,  says  nothing  of  the  time 

1  Congr.  Globe,  2d  Sess.,  3Oth  Congr.,  pp.  686-692. 

2  Ibid.,  2d  Sess.,  3ist  Congr.,  p.  820. 

3  Congr.  Globe,  2d  Sess.,  26th  Congr.,  p.  225.      A  stronger  statement 
on  the  same  subject  by  Mr.  Greeley  may  be  found  in  Parton's  Ljfe  of 
Greeley,  p.  280. 

4  Section  XIV. 


54  The  Origin  and  Development  of  the 

which  was  to  be  so  occupied ;  but  it  still  seems  to  have 
been  customary  to  devote  an  hour  to  such  business.1  In 
1877  the  morning  hour  was  made  a  definite  period  ;  but 
in  1883  it  was  again  made  indefinite,  provision  being 
made  for  proceeding  to  the  consideration  of  the  general 
calendar,  under  the  Anthony  rule,  immediately  after  the 
conclusion  of  the  morning  business,  or  at  one  o'clock, 
and  continuation  of  it  until  two  o'clock.2 

At  first  new  matter  could  be  introduced  at  any  time 
except  when  a  question  was  before  the  house  f  and  it 
was  not  until  1868  that  the  rules  provided  for  the  intro- 
duction of  bills  during  the  morning  hour.4 

The  first  rules  adopted  provided  for  at  least  one  day's 
notice  of  an  intended  motion  for  leave  to  introduce  a 
bill.5  The  setting  aside  of  this  rule  by  unanimous  con- 
sent in  the  case  of  nearly  all  bills,  and  the  consequent 
enctimbrance  of  the  journal  by  the  repetition  of  the 
words,  "  I  ask  leave  to  introduce  a  bill  without  having 
given  previous  notice,"  having  become  very  general,  a 
committee  was  appointed  in  1874  to  prepare  an  amend- 
ment to  the  rule,  the  restraint  of  which  it  was  thought 
was  sometimes  needed.  Various  means  of  avoiding  the 
inconvenience  and  yet  maintaining  the  essential  part  of 
the  rule  were  tried.6  Finally,  a  rule  was  adopted  which 
provided  that :  "  Whenever  a  bill  or  joint  resolution  shall 
be  offered,  its  introduction  shall,  if  objected  to,  be  post- 
poned for  one  day." 

The  rules  have  always  provided  for  three  readings  of 
all  bills  and  resolutions  and,  prior  to  1877,  these  readings 

1  Congr.   Globe,  ist  Sess.,   35th   Congr.,  p.  717,  statement  of  the 
vice  president. 

2  Rule  VIII. 

3  Jefferson,  Manual,  sec.  XIV. 
*  Rule  24. 

5  Rule  12. 

6  Congr.   Record,    ist  Sess.,   44th   Congr.,   p.   574;    2d   Sess.,   44th 
Congr.,  p.  627. 


United  States  Senate.  55 

had  to  be  on  separate  days,  unless  otherwise  ordered  by 
the  unanimous  consent  of  the  senate.  It  was  then  pro- 
vided1 that  bills  and  joint  resolutions  from  the  house  of 
representatives  or  from  a  committee  could  be  read  twice 
on  the  same  day,  if  not  objected  to. 

By  1843  ^  na^  come  to  be  the  practice  for  all  three 
readings  of  the  bill  to  be  by  title  only ;  and,  attention 
being  called  to  it,  the  vice  president  decided  that  the 
rules  of  the  senate  required  the  reading  of  bills  through 
on  their  second  reading ;  whereupon  it  was  done  for  a 
few  days,  but  was  found  to  consume  so  much  time  that 
the  one  who,  in  the  first  place,  had  objected  to  the  prac- 
tice, said  that :  "  He  hoped  it  would  be  the  understanding 
in  the  future,  that  all  bills  would  be  read  the  first  and 
second  times,  before  reference  to  a  committee,  by  their 
titles  only,  unless  any  senator  should  call  for  the  reading 
entire  of  particular  bills."  This  was  accordingly  done,2 

The  first  rule  adopted  regarding  the  order  of  procedure 
after  the  conclusion  of  the  morning  business  was  that  of 
1820,  which  provided  that  the  unfinished  business  of  the 
last  preceding  session  should  have  the  precedence.3  Af- 
ter this  came  the  special  orders,  if  any,  and  then  the 
general  orders.1 

In  1858  a  question  was  raised  as  to  whether  a  special 
order,  which  had  been  made  for  a  special  time,  if  not 
finished  on  that  day,  came  up  the  next  day  at  the  time 
for  which  it  had  been  fixed  at  the  previous  day,  or  at  one 
o'clock,  and  the  latter  was  decided.5 

When  the  amount  of  business  became  much  greater 
the  special  orders,  which  were  frequently  made  merely 
from  courtesy  to  accommodate  a  senator,  were  found  to 

1  Rule  24. 

2  Congr.  Globe,  ist  Sess.,  28th  Congr.,  p.  41. 

3  Rule  15. 

4  This  was  first  embodied  in  the  rules  in  1870.     (Congr.  Globe,  2d 
Sess.,  4ist  Coiigr.,  p.  1819.) 

5  Congr.  Globe,  ist  Sess.,  35th  Congr.,  p.  717. 


56  The  Origin  and  Development  of  the 

be  a  hindrance  to  business ;  and  in  1862  it  was  agreed-, 
.  without  opposition  or  debate,  that  thereafter  a  two-thirds 
vote  should  be  required  to  make  any  subject  a  special 
order.1  As  the  end  of  the  session  approaches,  in  later 
days,  a  special  time  has  often  been  set  aside  for  the  con- 
sideration of  special  classes  of  bills ;  and  these  special 
orders  have  sometimes  become  so  numerous  as  to  leave 
little  time  for  the  transaction  of  the  regular  business, 
and  made  it  necessary  to  rescind  all  such  orders.2 

Occasionally  a  whole  session  has  been  set  aside  for  the 
consideration  of  a  special  subject.  Mr.  Clay  wished  so 
to  limit  the  business  of  the  special  session  of  the  Twenty- 
seventh  Congress,  but  the  resolution  introduced  by  him 
for  this  purpose  was  not  acted  upon,  and  it  was  not  until 
the  adjourned  session  of  the  Fortieth  Congress,  which 
rnet  July  3,  1867,  that  such  a  limitation  was  adopted.  It 
was  then  decided  to  confine  the  business  of  the  session  to 
removing  obstructions  to  the  acts  of  reconstruction  and 
giving  them  the  scope  intended.  The  decision  was  not 
reached  without  strong  objections  being  made  to  it, 
notably  by  Mr.  Sumner,  who  declared  it  unconstitu- 
tional.3 A  similar  resolution  was  adopted  at  the  first 
session  of  the  Forty-second  Congress  and  at  the  first 
session  of  the  Forty-sixth  Congress. 

The  course  of  a  private  bill  in  the  senate  is  generally 
the  same  as  that  of  a  public  bill.  Though  there  is  no 
time  set  aside  by  the  standing  rules  for  their  consid- 
eration, as  there  is  in  the  house,  special  days  are  fre- 
quently ordered  to  be  devoted  to  their  consideration  for 
the  remainder  of  the  session,  or  until  they  are  disposed 
of. 

1  Congr.  Globe,  2d  Sess.,  37th  Congr.,  pp.  287,  288.     This  has  since 
been  the  rule  on  the  subject. 

2  Congr.  Globe,  2d  Sess.,  4ist  Congr.,  p.  1819;  Congr.  Globe,  2d 
Sess.,  46th  Congr.,  p.  1403. 

3  Congr.  Globe,  ist  Sess.,  4oth  Congr.,  pp.  481-498. 


United  States  Senate.  57 

Recently  some  restrictions  have  been  placed  upon  the 
repeated  re-introduction  of  claims  once  rejected  by  con- 
gress. The  senate  passed  a  joint  resolution  for  this 
purpose  at  two  succeeding  sessions  of  the  Twenty-seventh 
Congress,  but  the  resolution  was  not  considered  by  the 
house ;  and  there  seems  to  have  been  no  restriction  of 
this  sort  until  long  after,  when  a  senate  rule  was  adopted,1 
forbidding  bringing  up  a  claim  on  which  an  adverse 
report  had  been  made  and  accepted,  unless  new  evidence 
had  been  discovered.  As  it  is  not  very  difficult  to  obtain 
new  evidence,  this  has  not  proved  much  of  a  restraint.2 

The  increasing  number  of  private  bills,  which  occupied 
so  much  of  the  time  of  the  senate,  led,  in  1856,  to  the 
adoption  of  a  rule  providing  that :  "  Whenever  a  private 
bill  is  under  consideration,  it  shall  be  in  order  to  move 
as  a  substitute  for  it,  a  resolution  of  the  senate  referring 
the  case  to  the  Court  of  Claims."  This  rule  seems  to 
have  been  dropped  some  time  between  1868  and  1877, 
but  in  i8833  a  rule  authorizing  the  reference  to  the  court 
of  claims  of  all  claims  involving  the  determination  of 
facts,  was  adopted  in  accordance  with  a  statute  of  that 
year.4 

A  practice  had  grown  up  in  the  senate  of  securing  the 
passage  of  private  bills,  which  had  failed  on  their  merits, 
or  for  the  consideration  of  which  a  time  could  not  be 
found,  by  tacking  them  to  the  appropriation  bills.  To 
prevent  this,  a  rule  was  adopted  in  1850,  which  declared 
that  no  amendment,  providing  for  a  private  claim,  should 
be  received,  even  though  the  same  had  been  previously 
sanctioned  by  the  senate.5  This  was  soon  amended  by 
striking  out  that  part  of  the  rule  which  reads  "  although 

1  No.  58  of  the  rules  adopted  in  1877, and  No.  31  of  the  present  rules. 

2  Congr.  Record,  ist  Sess.,  48th  Congr.,  p.  1078. 

3  Rule  XVI,  sec.  3.     Now  found  in  Rule  XV,  sec.  3. 

4  Statutes  at  Large,  vol.  22,  p.  485,  2d  Sess.,  47th  Congr.,  chap.  116. 

5  Congr.  Globe,  2d  Sess.,  3ist  Congr.,  p.  78. 


58  The  Origin  and  Development  of  the 

the  same  may  have  been  previously  sanctioned  by  the 
senate,"  and  inserting  u  unless  it  be  to  carry  out  the 
provisions  of  an  existing  law,  or  a  treaty  stipulation."1 

In  recent  times  the  number  of  private  bills  has  in- 
creased so  much  as  to  occupy  an  undue  amount  of  the 
time  of  the  senate,  and  this  has  led  to  numerous  pro- 
posals for  rules  restricting  the  introduction  of  such  bills.2 

According  to  the  usage  of  the  British  parliament,  un- 
finished business  of  one  session  was  destroyed  by  a  dis- 
solution or  prorogation  of  parliament ;  and,  soon  after 
the  organization  of  the  new  government,  a  joint  commit- 
tee of  the  two  houses  decided  that  such  was  the  proper 
mode  of  procedure  to  be  followed  by  congress.3  All  at- 
tempts made  to  change  this  decision  failed,  until  1848, 
when  a  joint  resolution  was  adopted  providing  that  all 
"  bills,  resolutions,  or  reports  "  of  either  house,  undeter- 
mined at  one  session,  should  be  resumed  and  acted  upon 
u  after  six  days  from  the  commencement  of  a  second  or 
subsequent  session  of  Congress."4  A  question  arising 
in  the  senate  as  to  whether  this  included  petitions,  a  res- 
olution was  adopted  in  1854  providing  that  all  business 
undetermined  at  one  congress  should  be  resumed  at  the 
next,  no  time  for  so  doing  being  mentioned.  The  ques- 
tion raised  at  subsequent  sessions  as  to  whether  or  not 
this  rescinded  the  joint  rule  was  not  decided.5  A  similar 
resolution  was  adopted  at  succeeding  sessions  and  was 
added  to  the  standing  rules  in  i868,6  the  member  of  the 
committee  who  reported  the  rules  declaring  that  the  com- 
mittee did  not  consider  that  the  rule  repealed  the  joint 
rule,  but  that  it  was  in  harmony  with  it.7  At  the  same 

1  Congr,  Globe.,  ist  Sess.,  33d  Congr.,  p.  1058. 

2  For  example,  Congr.  Record,  ist  Sess.,  48th  Congr.,  p.  1077. 

3  Sen.  Journal,  vol.  I,  2d  Sess.,  ist  Congr.,  p.  107. 

4  Congr.  Globe,  ist  Sess.,  3oth  Congr.,  p.  1085. 

5  Ibid.,  3d  Sess.,  42d  Congr.,  p.  2. 

6  Rule  52. 

7  Congr.  Globe,  3d  Sess.,  4ist  Congr.,  p.  4,  Mr.  Edmunds. 


United  States  Senate.  59 

time  a  question  was  raised  as  to  whether  the  joint  rules 
forbade  action  before  six  days  had  elapsed.  The  house 
had  held  that  it  did  not,  but  the  senate  that  it  did  j1  but 
as  the  joint  rules  ceased  to  exist  soon  after  this,  there  is 
no  longer  this  restriction  on  the  action  .of  the  senate. 

Executive  business  has  ordinarily  been  taken  up  at  the 
end  of  the  day's  session,  unless  there  was  something  that 
could  not  wait,  or  would  require  an  entire  day. 

IV.      ^IMITATIONS   OF  DEBATE. 

• 

In  the  early  days  of  the  senate,  debate  was  practically 
unlimited,  the  restraints  placed  upon  it  being  slight  and 
seldom  enforced.  They  were,  that  no  motion  should  be 
debated  until  seconded,  that  the  decision  of  all  questions 
of  order  should  be  made  by  the  president  without  debate, 
and  that  no  member  should  speak  more  than  twice  in 
any  one  debate  on  the  same  day  without  leave  of  the 
senate.  The  previous  question,  which  was  provided  for 
by  the  rules2  but  rarely  used,3  and  was  omitted  in  the  re- 
vision of  the  rules  in  1806,  was  not  used  to  limit  de- 
bate, but  as  in  the  continental  congress  and  the  parlia- 
ment of  England,  where  the  previous  question  was  used 
to  avoid  a  vote  on  a  given  subject.  The  proper  occasion 
for  its  use  was,  according  to  Mr.  Jefferson,  to  get  rid  of 
subjects  "of  a  delicate  nature  as  to  high  personages, 
etc.,  or  the  discussion  of  which  may  call  forth  observa- 

1  Ibid.,  2d  Sess.,  34th  Congr.,  p.  i  ;  3d  Sess.,  4ist  Congr.,  pp.  3, 
19  ;  3d  Sess.,  42d  Congr.,  p.  2. 

2  Rule  IX.   "The  previous  question  being  moved  and  seconded  the 
question  from  the  chair  shall  be  '  Shall  the  main  question  be    now 
put?'     And  if  the  nays  prevail,  the  main  question  shall  not  then  be 
put.  "     In  the  continental  congress  the  usual  form  of  the  question  was 
"Shall  the  main  question  be  not  now  put  ?"  and  if  decided  in  the  affirm- 
ative the  main  question  was  not  then  put.     In  two  instances  this  is  the 
form  used  in  the  senate.     (Exec.  Jour.,  I,  96,  97.) 

3  Exec.  Jour.,  I,  pp.  96,  97,  318.     Sen.  Jour.,  ist  Sess.,  ist  Congr., 
pp.  60,  61.     Annals  of  Congr.,  ist  Sess.,  8th  Congr.,  p.  363. 


60  The  Origin  and  Development  of  the 

tions  which  might  be  of  injurious  consequences."1  He, 
however,  says  that  its  use  had  been  extended  abusively 
to  other  cases  ;  and  by  reference  to  the  cases  in  which  it 
was  used  in  the  senate,  it  would  seem  probable  that  its 
use  there  was,  as  in  England  at  the  present  time,  to  en- 
able the  body  to  dispose  of  the  subject  without  a  direct 
vote  upon  it.  The  previous  question  was  debatable2 
and  was  used  in  both  legislative  and  executive  session  and 
in  the  trial  of  impeachments,  but  not  on  amendments,3 
or  in  the  committee  of  the  whole.4 

In  1806,  debate  iipon  a  motion  for  adjournment  was 
forbidden,5  and  the  following  year  debate  on  an  amend- 
ment at  the  third  reading  of  a  bill  ;6  but  for  many  years 
thereafter  no  further  limitations  were  imposed,  and  this 
freedom  of  debate  was  rarely  abused.7  Mr.  Calhoun  said, 
in  1840,  that :  "There  never  had  been  a  body  in  this  or 
any  other  country  in  wrhich,  for  such  a  length  of  time, 
so  much  dignity  and  decorum  of  debate  had  been  main- 
tained."8 These  remarks  were  called  forth  by  a  proposal 
of  Mr.  Clay  for  the  introduction  of  the  previous  ques- 
tion,9 which,  he  stated,  was  rendered  necessary  by  the 
abuse  which  the  minority  had  made  of  the  unlimited 

1  Manual,  sec.  XXXIV. 

2  Ibid.,  sec.  XXXIV.    "  Then  the  previous  question  is  proposed  and, 
in  the  modern  usage,  the  discussion  of  the  main  question  is  suspended 
and  the  debate  confined  to  the  previous  question."     Maclay  gives  as  a 
rule  of  the  senate  the  following:  "In  case  of  a  debate  becoming 
tedious,  four  senators  may  call  for  the  question,  or  the  same  number 
may  at  any  time  move  for  the  previous  question,  viz  :  '  Shall  the  main 
question  be  now  put?  '  "  (Rule  7. )     I  can  find  no  confirmation  of  this 
rule. 

3  Sen.  Jour.,  vol.  Ill,  ist  Sess.,  6th  Congr.,  p.  27. 

4  Jefferson's  Manual,  sec.  XXIV. 
s  Rule  8. 

6  Sen.  Jour.,  vol.  IV,  2d  Sess.,  9th  Congr.,  pp.  135,  138,  139. 

7  See  Benton  on  the  subject,  Congr.  Globe,    istSess.,   27th   Congr., 
p.  204. 

b  Congr.  Globe,  ist  Sess.,  27th  Congr.,  p.  205. 
9  Ibid. ,  p.  203. 


United  States  Senate.  61 

privilege  of  debate.  The  proposition  met  with  so  much 
opposition  that  it  was  abandoned  ;  but  the  accusation  of 
factious  opposition  on  the  part  of  the  minority,  made  at 
that  time/  was  heard  again  and  again  in  succeeding  con- 
gresses ;  and  this,  together  with  the  increasing  amount 
of  business  to  be  transacted,  which  made  some  limitation 
of  even  legitimate  debate  seem  desirable  at  times,  led  in 
the  following  years  to  several  proposals  having  this  object 
in  view.2  None,  however,  were  adopted  until  the  civil 
war,  when  it  was  agreed  that,  in  the  consideration  in 
secret  session  of  subjects  relating  to  the  rebellion,  debate 
should  be  confined  to  the  subject-matter  and  limited  to 
five  minutes,  "  except  that  five  minutes  be  allowed  any 
member  to  explain  or  oppose  a  pertinent  amendment."3 
All  other  .proposed  limitations  of  debate  failed*  until 
1868,  when  a  rule  was  adopted  providing  that :  "  Motions 
to  take  up  or  to  proceed  to  the  consideration  of  any  ques- 
tion, shall  be  determined  without  debate,  upon  the  merits 
of  the  question  proposed  to  be  considered  ;"  the  object  of 
the  rule  being,  according  to  Mr.  Edmunds,  to  prevent  a 
practice  which  had  grown  up  in  the  senate,  "  when  a 
question  was  pending,  and  a  senator  wished  to  deliver  a 
speech  on  some  other  question,  to  move  to  postpone  the 
pending  order  and  take  up  another  ;  and  then  proceed  to 
deliver  their  speech  on  the  other  question."5  According 

1  Congr.  Globe,  ist  Sess.,  27th  Congr.,  p.  203. 

2  These  were  for  a  rule  allowing  an  amendment  to  be  laid  on  the 
table  without  the  bill  (Congr.  Globe,    ist  Sess.,   3ist  Congr.,  p.  1688, 
and  ist  Sess.,  32d  Cong.,  p.  1609),  for  the  introduction  of  the  previous 
question  (Congr.  Globe,  ist  Sess.,  3ist  Congr.,  pp.    1466,  1688),   and 
for  the  limitation  of  debate,  during  the  remainder  of  the  session,  to 
five  minutes,  except  on  leave  granted  (ist  Sess.,  35th  Congr.,  p.  2526). 

3  Congr.  Globe,  2d  Sess.,  37th  Congr.,  pp.  490,  536. 

4  The  limitations  proposed  were  to  allow  a  majority  (Congr.  Globe, 
2dSess.,  37th  Congr.,  p.   1557),  or  two-thirds  (2d  Sess.,  4ist  Congr., 
pp.  1819,  2212),  to  fix  the  time  for  ending  debate,  and  to  allow  amend- 
ments to  appropriation  bills  to  be  laid  upon  the  table  without  the  bill 
(Congr.  Globe,  2d  Sess.,  4ist  Congr.,  p.  4128). 

5  Congr,  Globe,  2d  Sess.,  4 ist  Cougr.,  p.  508. 


62  The  Origin  and  Development  of  the 

to  Mr.  Trumbull,  the  object  of  the  rule  was  to  prevent 
the  consumption  of  time  in  debate  over  business  to  be 
taken  up.1  The  rule  was  interpreted  as  preventing  debate 
on  the  merits  of  a  question  when  a  proposal  to  postpone 
it  was  made. 

As  appropriation  bills  generally  excited  so  much  in- 
terest and  discussion,  it  was  natural  that  the  necessity 
for  limiting  debate  on  them  should  be  felt  more  than  on 
other  bills ;  and,  about  this  time,  many  motions  were 
made  having  this  in  view.  The  first  to  be  agreed  to 
was  one  allowing  amendments  to  appropriation  bills  to 
be  laid  on  the  table  without  prejudice  to  the  bill.2  The 
efficacy  of  the  rule,  which  had  been  repeatedly  proposed 
and  rejected,  was  soon  acknowledged  by  all,  and  it  was 
afterwards  extended  so  as  to  apply  to  other  bills  as  well.3 

In  the  consideration  of  appropriation  bills  at  the  end 
of  the  session,  in  order  to  expedite  business  debate  had, 
on  several  occasions,  by  unanimous  consent,  been  con- 
fined to  five  minutes  ;  and  finally,  in  1872,  it  was  ordered 
that,  during  the  remainder  of  the  session,  it  should  be 
in  order,  in  the  consideration  of  appropriation  bills,  to 
move  to  confine  debate  by  any  senator  on  the  pending 
motion  to  five  minutes.4  The  necessity  for  some  limi- 
tation of  debate  caused  the  adoption  of  similar  resolu- 
tions at  most  of  the  succeeding  sessions. 

The  so-called  Anthony  rule  which,  for  the  expedition 
of  business  is  the  most  important  limitation  of  debate 
yet  adopted,  places  no  restraint  upon  the  rights  of  the 
minority,  inasmuch  as  a  single  objection  will  prevent  its 
application  to  the  subject  under  consideration.  It  was 
first  adopted  in  the  third  session  of  the  Forty-first  Con- 
gress, when  the  great  increase  in  the  amount  of  busi- 

1  Congr.  Globe,  2cl  Sess.,  4ist  Congr.,  pp.  507,  508. 

2  Ibid.,  36  Sess.,  4ist  Congr.,  p.  1477. 

3  Congr.  Record,  ist  Sess.,  47th  Congr.,  p.  1907. 

4  Congr.  Globe,  2d  Sess.,  42d  Congr.,  pp.  2867-2883,  yeas  33,  nays  13. 


United  States  Senate.  63 

ness,  which  made  it  impossible  to  reach  every- 
thing, and  caused  such  a  scramble  for  precedence 
that  hours  were  often  consumed  in  deciding  what 
should  be  done,  made  it  necessary  to  find  some 
means  of  relief.  The  rule  as  first  adopted  provided 
that  :  "On  Monday  next,  at  one  o'clock,  the  Senate 
will  proceed  to  the  consideration  of  the  Calendar,  and 
bills  that  are  not  objected  to  shall  be  taken  up  in  their 
order ;  and  each  Senator  shall  be  entitled  to  speak 
once  and  for  five  minutes,  only,  on  each  question ;  and 
this  order  shall  be  enforced  daily  at  one  o'clock  till 
the  end  of  the  Calendar  is  reached,  unless  upon  motion 
the  Senate  should  at  any  time  otherwise  order."1 

This  regulation  proving  efficacious  was  adopted  in 
succeeding  sessions  ;2  and  finally,  in  the  second  session  of 
the  Forty-sixth  Congress,  was  added  to  the  standing  rules. 
The  vice  president  at  the  next  congress  having  decided 
that,  if  a  majority  decided  to  take  up  a  bill,  on  objection 
being  made  to  its  consideration,  the  limitation  of  debate 
would  still  apply,  the  rule  was  amended  so  as  to  prevent 
this.3  When  the  regular  morning  hour  is  not  found 
sufficient  for  the  consideration  of  all  unobjected  cases  on 
the  calendar,  special  times  are  often  set  aside  for  the 
consideration  of  the  calendar  under  the  Anthony  rule. 

A  proposal  to  require  the  objection  of  five  to  pass  over 
a  bill  was  at  once  objected  to  as  a  form  of  the  previous 
question,4  and  all  other  proposals  for  a  limitation  of  de- 
bate, which  would  also  limit  the  power  of  the  minority, 
have  been  repeatedly  rejected  ;  and,  at  present,  there 

1  Congr.  Globe,  3d  Sess.,  4ist  Congr.,  p.  28.  The  rule  was  inter- 
preted as  allowing  objection  to  be  made  at  any  time.  (Congr.  Record, 
2d  Sess.,  4oth  Congr.,  pp.  1302-1304.) 

-  I  have  found  no  notice  of  the  adoption  of  this  rule  from  this  time 
until  the  second  session  of  the  Forty-fifth  Congress,  but  when  it  was 
then  proposed  it  was  said  that  it  had  been  used  for  some  time. 

3  Congr.  Record,  ist  Sess.,  47th  Congr.,  p.  3345. 

4  Ibid.,  3d  Sess.,  46th  Congr.,  p.  1693. 


64  The  Origin  and  Development  of  the 

seems  to  be  no  probability  of  such  a  rule  being  adopted. 

Though  the  senate  has  steadily  refused  to  place  gener- 
al limitations  on  its  right  of  debate,  it  is  comparatively 
easy,  when  the  question  under  consideration  does  not  in- 
volve strong  feeling,  to  secure  unanimous  consent  to  the 
limitation  of  debate  to  five  or  ten  minutes,  on  the  subject 
before  the  house.  Similarly  the  time  for  ending  debate 
and  taking  the  vote  is  often  fixed  by  unanimous  consent1 
The  custom  is  first  seen  coming  in  at  the  Twenty-ninth 
Congress,  when  an  unsuccessful  attempt  was  made  to  in- 
duce the  minority  to  fix  a  day  for  taking  the  vote  on  the 
Oregon  Bill,  which  had  been  debated  two  months. 

Usually,  when  there  is  no  factious  opposition,  and  the 
majority  have  been  willing  to  grant  to  the  minority  a 
reasonable  time  for  debate,  there  has  been  no  difficulty 
in  securing  such  unanimous  consent.  It  has  come  to  be 
the  custom  to  thus  fix  the  time  for  taking  the  vote  on  all 
the  revenue  bills,2  and  this  practice  doubtless  contributes 
much  to  the  rapidity  with  which  the  senate  can  transact 
business. 

All  the  rules  for  the  limitation  of  debate  which  have 
been  adopted  are  siich  as  were  needed  to  restrain  perfect- 
ly legitimate  debate  ;  and,  as  has  been  clearly  proven  of 
late,  are  little  or  no  restraint  upon  the  minority,  should 
it  wish  to  attempt  factious  opposition. 

In  the  early  days  of  congress  no  complaint  is  heard  of 
factious  opposition  or  dilatory  motions,  but  from  about 
1850  such  complaints  begin  to  be  heard.3  The  first  in- 

1  Such  an  agreement  was  not  enforced  by  the  chair,  but  every  sena. 
tor  felt  bound  to  stand  by  it  (Congr.  Globe,  2d  Sess.,  4ist  Congr.,  p. 
478  ;  Congr.  Record,  ist  Sess.,  5ist  Congr.,  p.  4129),  and,  according  to 
senatorial  usage,  a  number  less  than  a  quorum  could  make  the  agree- 
ment.    (Congr.   Globe,   3d  Sess.,  4ist  Congr.,  p.   1589,  statement  of 
vice  president. ) 

2  Congr.   Record,  ist  Sess.,   5ist  Congr.,  p.  9109,  statement  of  Mr. 
Gorman. 

3  For  example,   Congr.    Globe,    ist  Sess.,  32d  Congr.,  p.    1606  ;  ist 
Sess.,  34th  Congr.,  p.  1723  ;  3d  Sess.,  37th  Congr.,  p.  1491. 


United  States  Senate.  65 

stance  in  which  the  minority  openly  declared  their  inten- 
tion of  filibustering  was  in  1849,  when  Clay  brought 
forward  his  proposition  for  a  previous  question  ;  but,  as 
the  subject  was  not  pushed,  the  minority  were  not  forced 
to  carry  out  their  threats. 

The  right  of  the  minority,  under  certain  circumstan- 
ces, to  prevent  action  by  all  dilatory  motions  in  their 
power,  was  avowed  in  1879,  when  an  attempt  was  made 
to  repeal  the  then  existing  election  laws,  on  an  army  ap- 
propriation bill,  and  the  opposition  of  the  minority  forced 
the  dropping  of  the  measure.  But  the  most  notable  case, 
prior  to  the  recent  one,  happened  at  the  special  session 
of  the  Forty-seventh  Congress,  when  the  Republicans, 
having  just  obtained  a  majority  in  the  senate,  wished  to 
change  certain  of  the  officers  of  the  senate  at  the  special 
session.  The  Democrats  objected  to  the  change  being 
made  at  that  time,  and  delayed  action  by  long  speeches, 
by  motions  to  adjourn  and  to  go  into  executive  session, 
and  by  refusing  to  vote  and  so  breaking  a  quorum.  The 
struggle  finally  became  one  to  decide  whether  the  major- 
ity or  minority  should  rule  the  senate.  There  were  an 
equal  number  of  Republican  and  Democratic  senators  so 
that  the  casting  vote  of  the  vice  president  was  needed  to 
make  a  majority  for  the  Republicans.  His  right  to  a 
casting  vote  in  the  election  of  officers  was  questioned, 
and,  on  this  ground,  some  of  the  minority,  while  ac- 
knowledging the  right  of  the  majority  to  govern  as  a 
rule,  denied  it  in  the  present  instance.  This  position, 
however,  was  invalidated  by  the  refusal  of  one  of  the 
Democratic  senators  to  vote  with  his  party  on  this  point, 
the  vote  of  the  vice  president  being,  therefore,  unneces- 
sary for  securing  the  action  desired  by  the  majority.1 

The  struggle,  which  began  on  the  twenty-fourth  of 
March,  continued,  almost  without  interruption,  till  May 
fourth,  when  a  motion  was  made  to  go  into  executive 

1  Congr.  Record,  Special  Sess.,  47th  Congr.,  p.  407. 


66  The  Origin  and  Development  of  the 

session,  the  majority,  however,  declaring  that  they  did 
not  give  up  the  struggle.1  The  subject  was  again 
brought  up  on  the  sixth  and  eleventh  of  May,  but  meet- 
ing with  the  same  opposition  was  dropped,  the  minority 
thus  coming  off  victorious.  The  debates  in  the  senate 
and  the  articles  in  the  newspapers  were  of  much  the 
same  character  as  those  seen  during  the  recent  contest  be- 
tween the  majority  and  the  minority  in  the  senate,  and 
the  feeling  excited  against  the  senate  was  very  consider- 
able. The  action  of  the  minority  in  this  case  was  less 
defensible  than  in  the  recent  struggle,  in  that  they  could 
not  then  intrench  themselves  behind  the  assertion  that 
they  were  resisting  for  the  good  of  the  country,  as  what 
was  concerned  was  purely  a  party  measure. 

From  this  time  on  the  minority  have  shown  a  dispo- 
sition to  make  use  of  dilatory  tactics  to  prevent  any 
action  of  the  majority  to  which  they  objected.  In  the 
second  session  of  the  Fifty-first  Congress,  the  Democrats, 
being  in  but  a  small  minority,  attempted  to  dictate  the 
order  of  business  which  should  be  followed.  About 
forty-six  days  had  been  given  to  the  debate  on  the  Force 
Bill  in  the  senate  and,  the  minority  still  refusing  to  allow 
a  vote  to  be  taken,  the  majority  then  attempted  to  pass 
a  resolution  for  the  close  of  debate  by  the  majority  after 
a  reasonable  time,  but  this  met  with  the  most  deter- 
mined opposition.  A  session  of  four  days  without  ad- 
journment was  held,  at  the  end  of  which  time  the  Repub- 
lican majority  gave  way  and  moved  to  take  up  the 
apportionment  bill.  It  was  this  action  of  the  minority 
that  led  to  the  proposals  for  a  limitation  of  debate  which 
were  so  strongly  urged  during  that  session. 

The  recent  action  of  the  minority  in  the  first  session 
of  the  Fifty-third  Congress,  when  the  bill  for  the  repeal 
of  the  purchasing  clause  of  the  Sherman  act  was  dis- 
cussed in  the  senate  from  August  twenty-ninth  to  Oc- 

1  Congr.  Record,  4yth  Congr.,  Special  Session,  p.  453. 


United  States  Senate.  67 

tober  thirty-first,  on  which  day  the  minority  gave  way 
and  allowed  a  vote  to  be  taken,  has  raised  in  the  minds 
of  the  people  a  very  general  contempt  for  that  body,  and 
numerous  are  the  expressions  to  the  effect  that  such  a 
thing  had  never  before  happened  in  the  senate.  This 
feeling  seems,  however,  to  be  but  a  repetition  of  that 
aroused  against  the  senate  at  the  special  session  of  the 
Forty-seventh  Congress,  and  scarcely  stronger. 

If  the  length  of  time  occupied  in  the  discussion  is 
alone  considered,  it  is  seen  that  it  was  not  much  greater 
than  has  often  been  consumed  in  the  discussion  of  im- 
portant questions,  on  which  opposing  views  were  held,  or 
which  involved  party  questions.  The  difference  between 
this  discussion  and  that  over  the  re-charter  of  the  United 
States  bank,  for  instance,  lay  in  the  open  avowal,  on  the 
part  of  the  minority,  of  their  constitutional  right  to  ob- 
struct legislation  by  all  means  in  their  power,  and  their 
intention  of  using  them  ;  and  in  that  all  attempts  of  the 
majority,  after  reasonable  time  had  been  allowed  for 
debate,  to  have  a  time,  however  distant,  fixed  for  taking 
the  vote,  were  unsuccessful,  a  night  session  failing  to 
secure  the  desired  end.  All  means  of  opposition  were 
tried.  Speeches  which  occupied  three  and  four  days 
were  delivered.  Senators  refused  to  vote  to  make  a 
quorum,  and  one  dilatory  motion  after  another  was  made. 
Attempts  to  change  the  rules  were,  of  course,  without 
avail.  The  vice  president  did  not  see  fit  to  adopt  the 
suggestion,,  frequently  made,  that  he  should  refuse  to 
recognize  the  members  of  the  minority,  nor  was  the  sug- 
gestion of  Judge  Cooley,  who  held  the  action  of  the 
minority  to  be  antagonistic  to  the  constitution,  adopted. 
He  wrote  :  "  Members  of  the  majority  should  make  the 
proper  motions  looking  to  definite  and  final  action  on 
the  pending  measure,  and  the  presiding  officer  should 
recognize  them  ;  since  only  in  that  way  can  the  inalien- 
able right  of  the  Senate  to  express  its  will  be  exercised." 


68  The  Origin  and  Development  of  the 

This  not  being  done,  and  the  minority  finally  giving 
way,  the  rights  of  majorities  and  minorities  have  received 
no  authoritative  interpretation ;  and  there  seems,  at 
present,  no  probability  that  a  change  of  rules,  even,  will 
result  from  the  action  of  the  minority,  much  less  a  radi- 
cal change  in  the  constitution  of  the  senate  itself. 

All  other  means  of  securing  a  vote  on  a  given  ques- 
tion having  failed,  an  all-night  session  is  usually  tried. 
This  was  first  found  necessary  in  1837,  in  order  to  secure 
a  vote  on  the  expunging  from  the  journals  of  the  resolu- 
tion censuring  President  Jackson.1  It  was  again  tried  in 
the  first  session  of  the  Thirtieth  Congress,2  the  session  last- 
ing till  8  A.  M.,  before  the  vote  was  taken.  As  time 
went  on  and  the  difficulties  of  obtaining  a  vote  on  any 
subject  increased,  the  number  of  all-night  sessions  became 
greater.  They  did  not  always  succeed  in  their  object, 
by  any  means.  In  the  second  session  of  the  Thirty-ninth 
Congress,  Mr.  Wilson  said  that,  in  the  twelve  years  he 
had  been  in  the  senate,  he  had  never  known  anything  to 
be  gained  by  the  policy  of  night  sessions.3  Frequently, 
however,  a  vote  was  obtained  by  this  means  and  all- 
night  sessions  continued  to  be  tried,  almost  every  con- 
gress witnessing  at  least  one  such  attempt. 

On  such  occasions  it  is  usual  to  give  all  the  time  for 
speaking  to  the  minority.  When  night  sessions  were 
first  used,  the  time  seems  to  have  been  really  occupied 
with  debate,  but  later  dilatory  motions  came  to  occupy 
most  of  the  time.  Often  senators  would  refuse  to  vote 
so  that  it  would  be  impossible  to  secure  a  quorum. 

V.      APPROPRIATION   BIIJ& 

% 

The  constitution  provides  that  "  All  bills  for  raising 
Revenue  shall  originate  in  the  House  of  Representatives  ; 

*  Benton,  Thirty  Years'  View,  I,  pp.  727-731. 
2  Congr.  Globe,  pp.  999,  1002. 
8  Congr.  Globe,  p.  1396. 


United  Slates  Senate.  69 

but  the  Senate  may  propose  or  concur  with  Amendments 
as  on  other  Bills."1  This  clause  has  been  the  subject  of 
much  discussion,  the  phrase  "  All  bills  for  raising  Rev- 
enue "  being  interpreted,  on  the  one  hand,  as  preventing 
the  senate  from  originating  any  bills  for  appropriating 
money,  as  well  as  for  raising  it ;  and,  on  the  other,  as 
laying  a  prohibition  only  upon  the  origination  of  bills 
for  raising  money.  In  support  of  the  first  view  the  use 
of  the  phrase  "  revenue  bills,"  especially  in  England  at 
the  time  of  the  adoption  of  the  constitution,  was  cited, 
while  the  other  side  relied  on  the  ordinary  meaning  of 
the  word.  Both  sides  appealed  to  the  debates  in  the 
convention,  attention  being  called  on  the  one  hand  to 
the  use  of  "  money  bills  "  and  "  revenue  bills  "  as  synon- 
ymous terms,  and  on  the  other  to  the  fact  that  the  clause 
as  first  reported  read  "  All  Bills  for  raising  and  appro- 
priating money  and  for  fixing  the  salaries,"  but  as  finally 
adopted  read  "All  bills  for  raising  Revenue."2 

In  support  of  the  first  view  is  the  almost  unbroken 
practice  of  the  origination  of  the  general  appropriation 
bills  in  the  house ;  but,  on  the  other  hand,  there  are 
numerous  cases  in  which  the  senate  has,  without  being 
questioned  by  the  house,  originated  bills  for  all  kinds  of 
special  appropriations.3  Moreover  the  right  of  the  sen- 
ate to  originate  the  general  appropriation  bills  has  been 
asserted  by  that  house  on  several  occasions.  A  resolu- 
tion which  indirectly  declared  the  senate  to  have  this 
power  was  introduced  in  1797,  but  was  postponed.4  In 
1816,  however,  a  bill  making  additional  appropriations 

1  Article  I,  sec.  VII. 

2  Elliot,  Debates,  V,  p.  377,  Art.  IV,  sec.  5,  as  reported  by  the  com- 
mittee of  detail. 

3  The  instances  of  special  appropriations  originated  in  the  senate 
are  too  numerous  to  be  mentioned.     The  majority  report  of  the  judi- 
ciary committee  in  iS8i  said  that  they  would  fill  a  volume.     (3d  Sess., 
46th  Congr.,  House  Reports,  No.  147,  p.  10.) 

4  Sen.  Jour.,  2d  Sess.,  4th  Congr.,  vol.  II,  p.  348. 


yo  The  Origin  and  Development  of  the 

for  the  year  was  not  only  introduced  and  passed  in  the 
senate,1  but  agreed  to  in  the  house  without  any  objection 
being  made  to  the  place  of  origination. 

In  the  first  session  of  the  Thirty-second  Congress  the 
senate,  by  implication,  declared  that  it  could  originate 
appropriation  bills  by  refusing  to  add  "  to  the  Senate  " 
to  a  proposed  rule  which  provided  that :  "  All  general  ap- 
propriations shall  be  sent  at  least  ten  days  previous  to 
the  day  fixed  for  the  adjournment  of  Congress."2 

A  few  years  later,  the  delay  of  the  house  in  sending 
the  appropriation  bills  caused  the  senate  to  instruct  the 
committee  of  finance  to  "  prepare  and  report  such  of  the 
general  appropriation  bills  as  they  may  deem  expedient." 
It  was  thus  left  indefinite,  that  they  might  confer  with 
the  committee  of  ways  and  means  of  the  house  and  decide 
upon  a  division  of  the  work.3  Only  one  of  the  appropria- 
tion bills  was  introduced  and  passed  in  the  senate,  and  this 
was  not  considered  by  the  house,  which  introduced  and 
passed  a  bill  of  its  own  that  was  accepted  by  the  senate. 
Shortly  after  this,  however,  the  house  impliedly  denied 
that  appropriation  bills  were  revenue  bills,  by  denying  the 
right  of  the  senate  to  amend,  by  raising  the  rates  of 
postage,  a  bill  making  appropriations  for  the  post-office  ;* 
and  at  the  third  session  of  the  Forty-sixth  Congress  the 
house  committee  on  the  judiciary,  to  whom  the  subject 
had  been  referred,  upheld  the  right  of  the  senate  to 
originate  all  appropriation  bills.5 

Of  late  years  the  senate  has  not  pushed  its  claims.  A 
proposal  at  the  first  session  of  the  Forty-seventh  Congress 
to  instruct  the  committee  on  appropriations  to  introduce 
the  general  appropriation  bills,  was  not  received  with 

1  Sen.  Jour.,  ist  Sess.,  I4th  Congr.,  pp.  440,  632. 

2  Congr.  Globe,  ist  Sess.,  32d  Congr.,  p.  1787. 

3  Ibid.,  ist  Sess.,  34th  Congr.,  pp.  160-163,  375~38i. 

4  Ibid.,  2d  Sess.,  35th  Congr.,  p.  1634. 

5  House  Reports,  No.  147. 


United  States  Senate.  71 

favor  ;T  and  though  at  the  second  session  of  the  Forty- 
eighth  Congress  the  river  and  harbor  bill  was  intro- 
duced in  the  senate,  it  was  not,  as  was  stated,  with  the 
object  of  raising  the  old  question  of  the  right  of  the 
senate  to  introduce  the  appropriation  bills,  but  only  to 
give  the  senate  committee  ample  time  for  its  considera- 
tion. The  bill  was  that  of  the  house  with  certain  parts, 
disliked  by  the  senate,  stricken  out ;  and,  after  its  refer- 
ence to  the  committee,  no  further  action  was  taken  by 
the  senate.  This  attitude  of  the  senate  should  not,  how- 
ever, be  interpreted  as  a  sign  of  weakness  or  submission 
to  the  house.  The  senate  no  longer  claims  the  right  of 
originating  appropriations,  because  the  right  has  ceased 
to  be  of  any  practical  importance,  being  a  disadvantage 
rather  than  an  advantage,  since,  under  the  present  system, 
the  senate  makes  very  radical  changes  in  the  appropria- 
tion bills  which  the  house  has,  ordinarily,  no  time  to 
consider  or  amend.  Mr.  Hoar,  writing  in  1879,  held 
that  the  exclusive  right  of  the  house  to  originate 
money  bills,  gave  to  the  senate  a  considerable  preponder- 
ance of  influence,2  and  its  influence  since  then  has  rather 
increased  than  diminished. 

Another  point  on  which  the  senate  and  house  have 
disagreed  is  as  to  whether  or  not  a  bill  for  reducing 
revenue  is  a  bill  for  the ,  raising  of  revenue.  During 
the  first  half  of  the  century  leave  was  repeatedly 
granted  in  the  senate  for  the  introduction  of  bills  re- 
ducing the  revenue  by  diminishing  duties  or  for  the 
entire  repeal  of  acts  imposing  duties ;  and  many  exam- 
ples may  be  found  of  bills  so  originated  having  become 
laws.3 

In  1833  the  introduction  in  the  senate  of  Clay's  tariff 
compromise,  was  objected  to  because,  though  reduc- 

1  Congr.  Record,  pp.  4508,  4509. 

2  North  American  Review,  vol.  128,  p.  117. 

3  3d  Sess.,  4ist  Congr.,  Sen.  Reports,  No.  376,  p.  7. 


72  The  Origin  and  Development  of  the 

ing  the  revenue  in  general,  it  contained  one  clause  rais- 
ing it  ;*  and,  though  the  objection  was  overruled  in  the 
senate  and  the  bill  introduced  there,  in  order  to  avoid 
collision  with  the  house  an  exactly  similar  bill,  intro- 
duced and  passed  in  the  house,  was,  when  received  in 
the  senate,  made  the  basis  of  action  there.2  In  1844, 
however,  leave  was  refused  in  the  senate  to  revive  ,this 
act  on  the  same  ground  that  objection  had  earlier  been 
made  to  the  introduction  of  the  original  bill. 

The  senate  still  maintained  that  it  could  introduce 
bills  to  reduce  or  entirely  repeal  duties,  and  laws  of  this 
character  were  agreed  to  by  the  house  when  introduced 
in  the  senate;3  but  in  1871  the  house. denied  this  right 
also.4  The  position  taken  by  the  house  was  so  deter- 
mined that,  at  the  next  congress,  leave  to  introduce  a 
bill  for  the  reduction  of  the  internal  taxes  was  refused 
by  the  senate  on  the  ground  that  it  was  useless,  since  the 
house  would  surely  reject  such  a  bill  ;5  and,  later,  the 
senate  committee  pn  the  judiciary  reported  against  the 
right  of  the  senate  to  introduce  a  bill  for  the  reduction 
of  taxation,  though  still  maintaining  that  it  could  intro- 
duce one  for  the  entire  repeal  of  a  law  imposing  taxes.6 

The  house,  during  the  same  session,  in  its  eagerness 
to  restrain  the  senate,  indirectly  reversed  the  decision  of 
the  previous  session,  and  held' a  bill  for  repealing  duties 
not  a  revenue  bill,  by  declaring  that  the  senate  had  no 
right  to  amend  a  bill  of  that  character,  then  under  con- 
sideration, so  as  to  raise  revenue. 

At  first  all  the  general  appropriation  bills  were  made  in 
one  act,  but  in  1794  the  army  appropriation  was  made 
separately,  and  in  1798  the  appropriation  for  the  navy. 

1  Similar  bills  had  earlier  been  introduced  in  the  senate. 

2  Congr.  Globe,  ist  Sess.,  28th  Congr.,  pp.  159  ff.,  165,  166,  633. 

3  3d  Sess.,  4ist  Congr.,  Sen.  Reports,  No.  376,  p.  7. 

4  3d  Sess.,  4ist  Congr.,  Sen.  Reports,  No.  376. 

5  Congr.  Globe,  2d  Sess.,  42d  Congr.,  pp.  46,  47. 

6  2d  Sess.,  42d  Congr.,  Sen.  Reports,  No.  146. 


United  States  Senate.  73 

In  1837  the  general  appropriation  bills  were  "civil  and 
diplomatic,  army,  navy,  indian."1  The  appropriations 
for  the  several  branches  of  the  public  service  are  now 
made  in  thirteen  bills.2  In  the  senate  these  are  all  re- 
ferred to  the  committee  on  appropriations,  though  num- 
erous attempts  have  been  made  to  secure  the  reference 
of  each  of  the  appropriation  bills  to  the  committees 
having  charge  of  the  subject  with  which  each  bill  is 
concerned. 

For  the  first  few  congresses  the  appropriation  bills  were 
received  from  the  house  in  good  season,  but  in  the  first 
session  of  the  Fourth  Congress,  an  additional  appropria- 
tion bill  being  necessary,  it  was  introduced  and  rushed 
through  the  senate  in  the  last  two  days  of  the  session  ; 
and,  at  the  next  session,  the  bill  making  appropriations 
for  the  military  and  naval  expenses  was  not  received  in 
the  senate  till  March  third.  Unanimous  consent  to  its 
immediate  consideration  was  at  first  refused  but  later 
granted.  At  the  same  time  a  resolution  was  submitted, 
condemning  the  withholding  of  the  appropriation  bills 
till  the  end  of  the  session  as  an  infringement  on  the 
rights  of  the  senate,  and  proposing  the  adoption  of  a  rule 
forbidding  the  origination  or  receipt  of  such  bills  within 
the  last  ten  days  of  the  session.3 

Though  there  was  an  improvement  the  next  session, 
it  did  not  last,  and  the  practice  in  this  regard  became 
worse  rather  than  better.  The  rule  adopted  in  the  house 
in  1837,  requiring  the  committee  on  appropriations, 
within  thirty  days  after  the  opening  of  the  session,  to 
report  the  general  appropriation  bills,  or  in  failure  thereof 
the  reasons  of  such  failure,  seems  to  have  had  little  effect  ;4 
and,  the  appropriation  bills  coming  to  the  senate  later  and 

1  Rules  of  the  House  of  Rep.,  ist  Sess.,  45th  Congr.,  p.  120. 

2  Rules  of  the  House  of  Rep.,  ist  Sess.,  5ist  Congr.,  pp.  287,  288. 

3  Annals  of  Congress,  2d  Sess.,  4th  Congr.,  p.  1576. 

4  A  list,  giving  the  dates  of  the  receipt  of  the  appropriation  bills,  is 
given  in  Congr.  Globe,  ist  Sess.,  34th  Congr.,  pp.  160-161,  and  Congr. 
Record,  ist  Sess.,  49th  Congr.,  p.  6373. 


74  The  Origin  and  Development  of  the 

later,  the  senate  in  1852  amended  the  sixteenth  joint 
rule  so  as  to  provide  that  all  appropriation  bills  should 
be  sent  at  least  ten  days  before  the  end  of  the  session,1 
but  the  house  failed  to  agree  to  the  change.  A  proposal, 
made  quite  recently,  for  a  rule  forbidding  a  committee 
to  report  an  appropriation  bill  within  five  days  after  its 
receipt,  had  in  view  the  same  object. 

The  impossibility  of  properly  considering  the  bills  in 
the  short  time  usually  left  the  senate,  led  at  times,  as  has 
been  seen,  to  the  introduction  of  the  bills  in  the  senate  ; 
but,  as  there  were  such  serious  objections  to  this  course 
on  the  ground  of  its  unconstitutionality,  it  has  not  often 
been  tried.  It  is,  however,  perfectly  possible  for  the  sen- 
ate committees  to  consider  bills  before  their  receipt  from 
the  house,  and  this  is  often  done,2  and  it  sometimes  hap- 
pens that  amendments  are  offered  by  senators  to  appro- 
priation bills  before  their  receipt  from  the  house.3 

This  custom,  by  which  the  senate  can  gain  more  time 
for  the  consideration  of  bills,  added  to  the  fact  that  the 
amendments  which  an  appropriation  bill  now  receives  in 
the  senate  are  most  considerable,  sometimes  even  an  en- 
tirely new  bill  being  substituted,  has  turned  the  tables  so 
that  now  the  house  suffers  more  than  the  senate  from  the 
delay  of  the  appropriation  bills.  For,  frequently,  when 
a  bill  is  returned  to  the  house,  it  is  so  late  that  there  is 
no  time  to  consider  the  amendments  made  by  the  sen- 
ate, so  that  the  house  simply  non-concurs  in  them,  and  the 
bill  goes  to  a  conference  committee.  There  part  of  the 
senate  amendments  are  put  back  on  the  bill,  and,  as  the 
conference  report  is  often  adopted  by  the  house  without 
consideration,  the  amendments  made  by  the  senate  are 

1  Congr.  Globe,  vol.  24,  part  III,  ist  Sess.,  32d  Congr.,  p.  1787. 

2  It  was  done  as  early  as  the   first  session   of  the  32d  Congress. 
(Congr.  Globe,  p.  1786.) 

3  For  example,  House  Bill,  No.  13,462,  was  not  received  in  the  sen- 
ate until  February  3,  1891,  but  on  January  13,  1891,  an  amendment  to 
it  was  proposed  in  the  senate. 


United  States  Senate.  75 

never  considered  by  the  house.  Moreover,  the  wishes  of 
the  senate,  when  there  is  .a  difference  of  opinion  upon  a 
proposition  originated  in  the  senate,  are  much  more  apt 
to  prevail  when  tacked  to  a  bill  to  which  the  house  has 
already  given  its  assent,  than  when  introduced  as  a  sepa- 
rate bill.  The  fact  that  the  senate  is  a  more  permanent 
body  than  the  house  also  gives  it  an  advantage  every  two 
years,  in  that  the  house  knows  that,  if  the  senate  insists 
on  its  amendments,  and  the  bill  is  lost,  the  then  existing 
house  of  representatives  loses  all  power  over  the  subject, 
as,  at  the  extra  session  which  is  thus  made  necessary,  its 
successors  will  have  charge  of  the  matter. 

The  house  rule  adopted  in  1837,  requiring  all  appro- 
priation bills  to  be  reported  within  thirty  days  after  the 
beginning  of  congress  or  the  reasons  for  not  doing  so, 
was  retained  as  late  as  the  Forty-fifth  Congress.  After 
that  for  a  time  there  was  no  rule  on  the  subject,  but  in 
the  second  session  of  the  Fifty-second  Congress1  a  rule  was 
adopted  which  makes  it  the  duty  of  the  several  commit- 
tees to  report  the  general  appropriation  bills  within 
eighty  days  after  the  formation  of  the  committees  in  a 
long  session,  and  within  forty  days  after  the  commence- 
ment of  a  short  session  ;  and  further  provides  that  "  in 
failure  thereof,  the  reasons  of  such  failure  shall  be  priv- 
ileged for  consideration,  when  called  for  by  any  member 
of  the  House." 

Of  late  years  the  senate  usually  increases  the  amount 
of  the  appropriations :  the  bills  of  the  house  providing 
for  an  amount  less  than  that  demanded  by  the  estimates 
of  the  heads  of  the  departments,  are  raised  in  the  senate 
so  as  to  correspond  more  nearly  to  them.  The  result  is  that 
the  senate  has  come  to  be  accused  of  extravagance.  Ac- 
cording to  Mr.  'Sherman,  another  reason  why  appropria- 
tions are  always  increased  in  the  senate  is  that  the  heads 
of  the  various  departments,  for  some  reason,  perhaps  a 

1  Rules  of  the  House,  No.  XI,  sec.  53. 


7 6  The  Origin  and  Development  of  the 

desire  to  appear  economical,  never  include  in  their  esti- 
mates all  of  their  expenses,  and  when  the  appropriation 
bills  are  before  the  senate  committee  they  appear  and 
ask  to  have  these  items  inserted. 

The  right  of  amendment  of  the  appropriation  bills 
granted  to  the  senate  by  the  constitution,  has  always 
been  given  the  broadest  interpretation  ;  the  only  limita- 
tion upon  it  being  the  rules  of  the  senate.  At  first  there 
was  no  need  of  rules.  During  the  first  twenty  years 
only  about  one-half  of  the  appropriation  bills  received  any 
amendment  at  all.1  The  house  generally  agreed  to  these 
amendments  of  the  senate,  and  when  it  did  not,  the 
senate  receded.2  Conference  committees  were,  therefore, 
not  often  necessary,  there  being  but  six  on  appropriation 
bills  during  the  first  thirty  years. 

Later  it  became  the  custom  to  discuss  on  the  appropria- 
tion bills  more  than  any  others,  the  questions  that  con- 
cerned the  country  at  large,  and  numerous  amendments, 
containing  general  legislation  or  providing  .for  private 
claims,3  were  added,  so  that  half  of  the  debates 
on  appropriation  bills  came  to  be  concerned  with 
these  private  claims.4  This  state  of  affairs  caused  the 

1  Out  of  thirty-three  general  appropriation  bills  seven  passed  the 
senate  without  amendment.     Of  twenty-two  army  appropriation  bills 
thirteen,  and  of  the  fifteen  navy  appropriation  bills  twelve  passed  the 
senate  without  amendment.     During  the  next  ten  years  an  increasing 
number  of  the  appropriation  bills  were  amended,  about  two-thirds  be- 
ing so  treated. 

2  Of  the  twenty-four  general  appropriation  bills  amended  by  the  sen- 
ate, the  house  concurred  in  all  the  amendments  made  to  eighteen  of 
them,  and  in  certain  of  the  amendments  made  to  the  other  six  ;  and  it 
concurred  in  all  of  the  amendments  of  the  senate  to  the  nine  army  and 
three  navy  bills  which  the  senate  amended.     As  neither  the  amend- 
ments made  by  the  senate,  nor  the  bills  as  first  passed  by  the  house, 
are  generally  given,  it  is  impossible  to  tell  how  important  the  senate 
amendments  were. 

3  Congr.  Globe,  ist  Sess.,  32d  Congr.,  p.   1287,  statement   of  Mr. 
Bright. 

4  Ibid.,  p.  2170,  statement  of  Mr.  Hunter. 


United  States  Senate.  77 

adoption,  without  debate,  in  1850  of  a  rule  which  pro- 
vided that :  "  No  amendment  proposing  an  additional  ap- 
propriation shall  be  received  to  any  general  appropriation 
bill,  unless  it  be  made  to  carry  out  the  provisions  of  some 
existing  law,  or  some  act  or  resolution  previously  passed 
by  the  Senate  during  the  session,  or  in  pursuance  of  an 
estimate  from  the  head  of  some  of  the  departments ;  and 
no  amendment  shall  be  received  whose  object  is  to  pro- 
vide for  a  private  claim,  although  the  same  may  have 
been  previously  sanctioned  by  the  Senate."  A  little 
later  this  rule  was  amended  so  as  to  allow  amendments 
proposed  by  a  standing  committee,  it  being  urged  that 
otherwise  the  senate  could  but  register  the  decrees  of  the 
house.  The  same  privilege  was  later  extended  to  select 
committees.2  The  rule  was  again  amended  in  1854  by 
striking  out  "  although  the  same  may  have  been  previ- 
ously sanctioned  by  the  Senate,"  and  inserting  "  unless  it 
be  to  carry  out  the  provisions  of  an  existing  law  or  treaty 
stipulation,"3  and  again,  in  1867,  the  rule  was  further 
modified  by  adding  :  "  and  all  amendments  to  general  ap- 
propriation bills  reported  from  the  Committees  of  the 
Senate,  proposing  new  items  of  appropriation,  shall,  one 
day  before  they  are  offered,  be  referred  to  the  Committee 

1  Congr.  Globe,  vol.  23,  2d  Sess.,  3ist  Congr.,  p.  94.     The  rule  as  in- 
terpreted by  the  senate  was  construed  to  apply  to  estimates  made  by 
he  departments  at  the  request  of  individual  senators,  and  to  an  amend- 
ment proposed  by  a  committee,  and  based  on  an  estimate  of  a  depart- 
ment.    (Congr.  Globe,  ist  Sess.,  32d  Congr.,  pp.  1190,  1192. )     A  mo- 
tion made  in  1852  to  require  the  recommendation  of  an  appropriation 
by  the  head  of  the  department  to  which  it  referred  was  not  adopted. 
(Ibid.,  pp.  1286-87.) 

2  Congr.  Globe,  ist  Sess.,  33d  Congr.,  p.  1381. 

3  Ibid.,  p.  1058.     The  same  session  (p.  2214),  a  proposal  was  made, 
but  not  voted  on,  which  declared  that  "hereafter  the  Senate  will  not 
receive  or  consider  any  bill  or  proposition,  other  than  the  general  ap- 
propriation bills  for  the  support  of  the  government,  which  appropri- 
ates money  for  more  than  one  object." 


78  The  Origin  and  Development  of  the 

on  Appropriations  ;  and  all  general  appropriation  bills 
shall  be  referred  to  the  same  Committee."  * 

Under  the  old  rule  it  had  been  held  that  an  amendment 
to  an  amendment  could  be  offered  by  anybody,2  and  the 
presiding  officer  thought  this  the  correct  interpretation 
under  the  new  rule,  but  his  decision  was  overruled.3 

Prior  to  1855,  there  had  been  no  instance  of  important 
general  legislation  being  attached  to  appropriation  bills, 
though  for  the  preceding  ten  years  unimportant  legisla- 
tion had  been  passed  in  that  way.  In  that  year  the 
tariff  bill  was  added  to  an  appropriation  bill,4  and  from 
that  time  on  such  a  course,  of  procedure  became  very 
common.5  Mr.  Sherman,  speaking  of  the  practice  in 
the  Fortieth  Congress,  said  :  "  Almost  every  legislative 
act  changes  an  existing  law,  and  the  House  rule  forbids 
that  being  done  on  the  appropriation  bills ;  but  in  the 
Senate  we  have  never  practiced  upon  that.  On  the  con- 
trary, we  seek  the  appropriation  bills,  sometimes,  not 
only  to  carry  convenient  amendments,  but  to  assert  great 
principles ;  and  I  might  go  to  many  instances  in  the 
history  of  the  government  where  the  Senate  has  attached 
important  legislative  provisions  to  appropriation  bills, 
and  has  presented  them  in  that  way  forcibly  to  the 
country."6 

Proposals  made  at  the  second  sessions  of  the  Fortieth 
and  Forty-first  Congresses,  for  such  amendments  of  the 
rules  as  to  forbid  general  legislation  on  the  appropria- 
tion bills,  were  rejected  or  tabled  ;7but  in  the  second  session 

1  Congr.  Globe,  ist  Sess.,  4oth  Congr.,  p.  12. 

2  Ibid.)  p.  3518,  decision  of  the  Chair. 

3  Ibid.,  p.  3520. 

4  Ibid.,  2d  Sess.,  330!  Congr. 

5  Prominent  examples  are  to  be  found  in  the  second  session  of  the 
34th  Congress,  the  second  session  of  the  38th  Congress,  and  the  first 
sessions  of  the  39th  and  42d  Congresses. 

6  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  p.  3612. 

7  Ibid.,  2d  Sess.,   4oth  Congr.,   pp.  2089,  2090,  and    2d  Sess.,  4ist 
Congr.,  pp.  4128,  4249. 


United  States  Senate.  79 

of  the  Forty-second  Congress,  the  tendency  to  put  all 
the  legislation  of  the  session  on  the  appropriation  bills 
led  the  senate  to  adopt  a  resolution  not  to  receive,  during 
the  remainder  of  the  session,  any  amendments  making 
legislative  provisions  other  than  such  as  directly  related 
to  the  appropriations  contained  in  the  bill.1  No  per- 
manent change,  however,  was  made  until  the  second 
session  of  the  Forty-fourth  Congress,2  when  it  was  pro- 
vided that  no  amendment  to  a  general  appropriation  bill 
should  be  received  which  proposed  general  legislation, 
or  which  was  not  germane  or  relevant  to  the  subject- 
matter  of  the  bill.3  This  rule  was  held  to  apply  to 
general  legislation  sent  from  the  house,  and  to  amend- 
ments of  conference  committees.4 

Prior  to  this  time  the  rules  of  the  house  on  the  subject 
had  been  more  strict  than  those  of  the  senate,  and  the 
house  was  accustomed,  therefore,  when  it  wished  some- 
thing forbidden  by  its  rules  to  be  included  in  an  appro- 
priation bill,  to  get  it  put  on  in  the  senate.  Now  this 
was  changed.5  There  was,  however,  no  less  of  general 
legislation  on  appropriation  bills,  for  the  point  of  order 
would  either  be  waived  and  legislation  allowed,  or  all 
general  legislation  would  be  stricken  out,  and  then,  in 
conference  committee,  part  of  it  would  be  put  back 
on  without  the  senate  ever  having  discussed  it.  Thus 
Mr.  Elaine  said,  in  1879,  that  there  had  been  more  legis- 
lation on  appropriation  bills  since  the  adoption  of  the 
senate  rule  than  in  the  twenty  previous  years,  because,  the 

1  Congr.  Globe,  2d  Sess..  426.  Congr.,  p.  2883,  yeas  33,  nays  13. 

2  Proposals  had,  however,  been  earlier  made  for  such  a  change,  as  in 
the  first  session  of  the  44th  Congr.,  pp.  1362,  2100. 

3  Congr.  Record,  2d  Sess.,  44th  Congress,  p.  628,  rule  29. 

4 Ibid.,  ist  Sess.,  4yth  Congr.,  p.  6603;  2d  Sess.,  48th  Congr.,  p. 
1467.  For  other  decisions  under  the  rule,  see  2d  Sess.,  46th  Congr., 
Sen.  Misc.  Docs.,  vol.  II,  No.  84,  under  rule  29. 

5  Statement  of  Mr.  Dawes,  Congr.  Record,  2d  Sess.,  48th  Congr.,  p. 
1465. 


8o  The  Origin  and  Development  of  the 

senate  being  restricted  by  its  rules,  the  house  had  it  all 
its  own  way  j1  and  in  the  Forty-eighth  Congress,  Mr.  In- 
galls  declared  that,  for  the  last  ten  years,  there  had 
hardly  been  an  appropriation  bill  passed  which  did  not 
contain  general  legislation.2 

A  joint  rule  on  the  subject,  adopted  by  the  senate  in 
the  first  session  of  the  Forty-eighth  Congress,  was  not 
agreed  to  by  the  house,3  but  the  house  in  the  first  session 
of  the  Forty-ninth  Congress  amended  its  rules  so  as  not 
to  allow  the  change  of  any  existing  law  on  an  appropria- 
tion bill.4  This  rule,  which  was  interpeted  by  Speaker 
Reed  so  as  to  forbid  all  legislation  on  the  appropriation 
bills,  has  turned  the  tables,  and  greatly  increased  the 
power  of  the  senate,  so  that  now,  as  at  an  earlier  period, 
if  the  house  wishes  general  legislation  on  an  appropria- 
tion bill  it  must  get  it  put  on  in  the  senate,  where  a  ma- 
jority only  is  required  to  suspend  the  rules  after  notice 
given,  while  in  the  house  two-thirds  is  necessary. 

VI.    PARTY  INFLUENCES   IN  THE   SENATE. 

In  spite  of  the  secondary  election  of  senators,  which 
it  might  be  supposed  would  remove  them  to  a  certain  ex- 
tent from  party  politics,  party  influences  began  to  make 
themselves  felt  in  the  senate  as  soon  as  parties  were  or- 
ganized. As  the  state  legislatures  almost  invariably  elected 
men  belonging  to  the  party  dominant  in  those  bodies, 
a  senator  was  as  much  the  representative  of  a  party  as  if 

1  Congr.  Record,  3d  Sess.,  45th  Congr.,  p.  635. 
2Congr.  Record,  2d  Sess.,  48th  Congr.,  p.  1318. 

3  A  proposal  in  the  first  session  of  the  Fiftieth  Congress  for  a  rule 
directing  the  presiding  officer  on  the  receipt  of  house  bills  to  strike 
out  all  provisions  of  a  "general  legislative  ^character  other  than  such 
as  relate  to  the  dispositions  of  the  moneys  appropriated  therein,"  sub- 
ject, however,  to  an  appeal  to  the  senate,  was  not  agreed  to.     (Congr. 
Record,  p.  4208.) 

4  P.  332.     Previously  it  had  been  allowed  if  it  restricted  expenditure 
and  was  germane  to  the  subject. 


United  States  Senate.  Si 

he  had  been  elected  directly.  Of  the  extent  to  which 
party  feeling  was  carried  one  may  judge  from  a  letter  of 
Jefferson  in  1797  to  Rutledge,  in  which  he  says  :  "  You 
and  I  have  formerly  seen  warm  debates  and  high  politi- 
cal passions.  But  gentlemen  of  different  politics  would 
then  speak  to  each  other,  and  separate  the  business  of 
the  Senate  from  that  of  Society.  It  is  not  so  now.  Men 
who  have  been  intimate  all  their  lives,  cross  the  street 
to  avoid  meeting,  and  turn  their  heads  the  other  way, 
lest  they  should  be  obliged  to  touch  their  hats."  l 

It  is  difficult  to  tell  just  when  party  caucuses  to  decide 
upon  the  vote  of  the  party  on  legislative  measures  came 
into  use.  During  Washington's  administration,  they 
were  held  to  decide  on  the  action  of  the  party  regarding 
nominations  ;2  and  it  is  a  well  established  fact  that  a  se- 
cret caucus  was  held  in  1800,  for  nominating  a  presiden- 
tial candidate.  The  same  year  it  was  declared  by  Duane, 
in  his  paper,  that  a  legislative  party  caucus  was  held  at 
the  house  of  one  of  the  senators,  at  which  seventeen 
senators  were  present ;  and  he  further  states  that  cau- 
cuses were  then  in  use  in  the  senate,  and  that  a  certain 
bill,  called  the  electoral  count  bill,  was  framed  in  a  cau- 
cus to  which  Mr.  Pinckney,  a  staunch  Republican,  and 
one  of  the  committee  to  whom  the  bill  was  referred,  was 
not  bidden.3  Mr.  Pinckney,  however,  declared  that  he 
was  present  at  all  the  meetings  of  the  committee,  and 
the  report  of  the  committee  to  whom  the  accusation  was 
referred  declared  it  "  false,  defamatory,  scandalous,  and 
malicious,  tending  to  defame  the  Senators  of  the  United 
States,  to  bring  them  into  contempt  and  disrepute,  an$ 

1  Works,  vol.  IV,  p.  191. 

2  Davis,  L,ife  of  Burr,  I,  p.  408.     This  was  to  decide  whom  to  suggest 
to  Washington  as  ambassador  to  France.     Again  in  1799,  a  caucus  of 
Federal  senators  was  held  to  decide  whether  to  reject  the  nomination 
of  Vans  Murray  to  France.     (Hamilton's  Works,  ed.  by  J.  C.  Hamil- 
ton, VI,  400.) 

3  Annals  of  Congress,  ist  Sess.,  6th  Congr.,  p.  114. 


82  The  Origin  and  Development  of  the 

to  excite  against  them  the  hatred  of  the  good  people  of 
the  United  States." 

If  the  statement  of  Duane  was  false,  it  would  still 
seem  that  legislative  party  caucuses  came  in  but  a  short 
time  afterwards,  for  Bradford,  speaking  of  the  second 
session  of  the  Eighth  Congress,  says  :  "  During  this  ses- 
sion there  was  far  less  of  free  and  independent  discussion 
on  the  measures  proposed  by  the  friends  of  the  adminis- 
tration, than  had  been  previously  practised  in  both 
branches  of  the  national  legislature.  It  appeared  that 
on  the  most  important  subjects  the  course  adopted  by  the 
majority  was  the  effect  of  caucus  arrangement  or,  in  other 
words,  had  been  previously  agreed  upon  at  meetings 
of  the  Democratic  members  held  in  private.  Thus,  the 
legislation  of  congress  was  constantly  swayed  by  party 
feelings  and  pledges,  rather  than  according  to  sound  rea- 
son, or  personal  conviction."  This  system  of  party  dic- 
tation was  continued.  In  1809,  Story,  giving  his  reasons 
for  refusing  a  re-election  to  the  senate,  writes  :  u  I  found 
an  entire  obedience  to  party  projects  required  such  con- 
stant sacrifices  of  opinion  and  feeling,  that  my  solicitude 
was  greatly  increased  to  withdraw  from  the  field." 

The  use  of  the  caucus  constantly  increased.  After  a 
time,  as  has  been  seen,  the  committees  were  always  de- 
cided upon  in  caucus.  Sometimes  the  order  of  business 
was  decided  there.3  In  1862  an  attempt  was  even  made 
to  control  the  president  in  his  choice  of  cabinet  officers,  by 
a  decree  of  the  caucus  advising  the  displacement  of 
Seward,  the  secretary  of  state.  Seward  immediately  re- 
sjgned,  but  as  the  rest  of  the  cabinet  declared  that  they 

1  Williams,  Statesman's  Manual,  I,  244,  quoting  Bradford,  History 
of  Federal  Government. 

2  Life  of  Story,  I,  194,  195. 

3  In  the  ist  session  of  the  4oth  Congr.,  (pp.  496  ff. )  there  was  a  dis- 
cussion of  caucus  obligations,  owing  to  Mr.  Sumner's  holding,  con- 
trary to  the  generally  accepted  theory,  that  one  who  remained  in  the 
caucus  was  not  necessarily  bound  by  its  decisions. 


United  States  Senate.  83 

would  resign  rather  than  consent  to  the  proposed  change, 
and  as  when  the  news  got  abroad  it  was  received  with 
general  disapproval,  the  caucus  began  to  back  down,  and 
the  President  requested  Seward  to  resume  the  office 
which  he  had  resigned. 

The  caucus  of  the  senate  now  usually  meets  about 
twice  a  month,  and  it  is  very  largely  through  it  that  the 
older  members  in  the  senate  exercise  such  a  preponder- 
ating influence. 

Another  restriction  upon  the  freedom  of  the  early- 
senators  was  the  instructions  of  their  state  legislatures. 
The  states  had  been  accustomed  to  instruct  their  repre- 
sentatives to  the  continental  congress,  and  there  had 
been  some  discussion  in  the  convention  as  to  whether 
the  senators  should  be  independent  of  their  legislatures, 
or  should  receive  instructions  from  them.  The  right  of 
instruction  was  debated  in  the  house  during  the  first 
session  of  the  First  Congress ;  but  it  was  not.  until  the 
third  session  that  the  question  was  brought  up  in  the 
senate  by  a  motion  of  the  Virginia  senators,  in.  obedience 
to  their  instructions,  which  they  mentioned,  for  opening 
the  doors  of  the  senate.  Various  opinions  regarding  in- 
structions were  expressed.  It  was  held  that  they 
amounted  to  no  more  than  a  wish,  and  ought  to  be  no 
further  regarded  ;  that  they  were  binding  upon  senators  ; 
that  no  legislature  had  any  right  to  instruct  at  all,  any 
more  than  the  electors  had  a  right  to  instruct  the  presi- 
dent ;  that  in  local  questions  affecting  the  interests  of 
his  constituents  the  representative  ought  to  obey  his  in- 
structions, but  that  in  a  national  question  he  should 
not  consider  himself  bound  by  the  wishes  of  his  con- 
stituents. 

There  was  a  second  discussion  of  the  question  in  1808, 
but  the  most  considerable  debate  on  the  subject  in  the 
senate,  and  the  one  in  which  the  views  of  the  opposite 
parties  were  most  fully  set  forth,  arose  in  connection 


84  The  Origin  and  Development  of  the 

with  the  re-charter  of  the  United  States  bank  (1811),  up- 
on which  certain  of  the  large  states  had  instructed  their 
representatives  how  to  vote.  Some  senators  obeyed  their 
instructions  and  some  did  not ;  but  all  felt  it  necessary 
to  explain  their  action,  and  the  reasons  for  it.  Thus 
the  debates  were  long  drawn  out,  and  the  same  thing 
said  over  and  over  again,  but  without  any  decision  being- 
reached. 

The  subjects  for  which  instructions  were  used  were  vari- 
ous. They  were  used,  as  in  the  case  of  the  bank  bill,  to  en- 
force the  wishes  of  the  states  on  important  questions  ;  or 
to  propose  amendments  to  the  constitution  ;  or  to  secure 
the  passage  of  a  local  bill.  The  usual  form  of  these  in- 
structions was  :  "  Resolved,  That  the  Senators  of  this 
state,  in  the  Congress  of  the  United  States,  be  instructed, 
and  our  Representatives  most  earnestly  requested,"  etc. 
Sometimes  they  were  sent  in  the  form  of  wishes  only,  or 
as  requests.  The  results  of  instructions  were  usu- 
ally satisfactory.  Often  the  senators  agreed  with  them, 
or  could,  on  receiving  them,  make  themselves  believe 
that  they  did  ;  and,  if  they  did  not,  enough  pressure  was 
usually  brought  to  bear  to  make  them  prefer  to  resign 
rather  than  stay  in  office  in  direct  opposition  to  the  will 
of  their  constituents. 

The  case  of  Hugh  L,.  White  attracted  a  good  deal  of 
attention.  Benton,  in  speaking  of  his  resignation,  writes 
that  it  took  place  "  under  circumstances  not  frequent, 
but  sometimes  occurring  in  the  Senate,  .  .  .  that  of 
receiving  instructions  from  the  general  assembly  of  his 
state,  which  either  operate  as  a  censure  upon  a  senator 
or  which  require  him  to  do  something  which  either  his 
conscience  or  his  honor  forbids."  He  continues  :  u  He 
consulted  his  self-respect,  as  well  as  obeyed  a  Democratic 
principle,  and  sent  in  his  resignation." 

A  later  instance  of  similar  action  is  the  resignation  of 
Brown  and  Strange,  senators  from  North  Carolina,  in 


United  States  Senate.  85 

1840.  An  opposite  interpretation  of  the  relations  of 
senators  to  the  state  legislatures  was  given  by  Snmner 
in  1872,  when  censured  by  the  Massachusetts  legislature. 

State  legislatures  are  still  accustomed  to  communicate 
to  their  representatives  their  views  on  various  matters, 
and  to  instruct  or  request1  senators  to  act  in  a  certain 
way. 

Sometimes,  still,  a  senator  is  seen  voting  for  a  measure 
of  which  he  disapproves,  giving  as  a  reason  for  his  action 
that  the  measure  is  favored  by  the  state  which  he  repre- 
sents. 

It  was  natural  that  those  states  which  held  that  state 
legislatures  had  a  right  to  issue  to  senators  mandatory 
instructions,  should  also  wish  to  have  the  power  to  re- 
call them  ;  and  Virginia,  in  1808,  did  in  fact  instruct  her 
representatives  to  procure  such  an  amendment  to  the 
constitution.2  Attempts  were  also  made  to  make  sena. 
tors  more  dependent  upon  their  constituents  by  shorten- 
ing their  term  of  office. 

VII.      RELATION   OF  THE  PRESIDENT  AND  SENATE   IN    LEGISLATION. 

Although  it  is  in  the  performance  of  its  executive  du- 
ties that  the  senate  conies  most  in  contact  with  the  presi- 
dent, yet  in  the  execution  of  its  legislative  duties  the 
influence  of  the  president  is  also  felt. 

The  only  authorized  means  for  the  exercise  of  this  in- 
fluence is  through  the  veto,  and  the  right  and  duty  of  the 
president  from  time  to  time  to  give  "  to  the  Congress  In- 
formation of  the  state  of  the  Union,  and  recommend  to 
their  Consideration  such  Measures  as  he  shall  judge  nec- 
essary and  expedient."3  This  the  president  has  done  in 
his  annual  and  special  messages,  both  of  which  are  now 

1  For  examples  of  this  form  see   ist  Sess.,  43d  Congr.,  Sen.  Misc. 
Docs.,  Nos.  61,  69. 

2  Sen.  Jour.,  ist  Sess.,  loth  Congr.,  p.  267.     Tenn.  and  N.  J.  passed 
resolutions  against  this. 

3  Art.  II,  sec.  III. 


86  The  Origin  and  Development  of  the 

written.  The  annual  messages  of  Washington  and 
Adams,  however,  were  delivered  in  the  senate  chamber 
where  the  house  was  also  assembled,  and  a  formal  answer 
was  returned  by  both  houses,  who  waited  upon  the 
president  for  this  purpose. 

Before  the  introduction  of  standing  committees  the 
various  portions  of  the  president's  annual  message  were 
referred  to  special  committees  ;  afterwards  they  were  re- 
ferred to  the  standing  committees  having  the  subject  in 
charge  as  were  also  the  special  messages  and  reports. 

As  the  president  can  not  support  his  plans  in  the  sen- 
ate and  has  no  means  of  enforcing  them,  they  amount  to 
little  more  than  suggestions  which  congress  may  follow 
or  not  as  it  sees  fit. 

The  considerable  influence  on  legislation  which  some 
presidents  have  exercised  seems  usually  to  have  been 
mainly  due  to  some  circumstance  other  than  their  occu- 
pation of  the  presidential  chair,  such  as  their  popularity 
with  the  people  or  their  position  as  the  recognized  lead- 
ers of  their  party. 

The  influence  of  the  first  few  presidents  on  legislation 
was  very  considerable  ;  but,  with  the  decline  in  the  char- 
acter of  the  occupants  of  the  office,  their  influence  on 
legislation  has  decreased,  and  this  in  spite  of  the  use  of  the 
patronage  to  support  it  and  the  increased  use  of  the  veto 
power.  The  first  considerable  use  of  the  veto  was  made 
by  Jackson,  who  vetoed  eleven  bills,  a  greater  number 
than  had  been  vetoed  in  the  forty  preceding  years.1  As 
a  result  it  became  no  unusual  thing  to  use  the  prediction 
of  a  veto  as  a  chief  argument  in  debate.  Clay,  in  a 
speech  on  the  removal  of  the  deposits,  said  :  "  The  ques- 
tion is  no  longer  what  laws  will  Congress  pass,  but  what 
will  the  Executive  not  veto?  The  President,  and  not 
Congress,  is  addressed  for  legislative  action."2 

1  Prior  to  Jackson  there  had  been  but  nine  vetoes. 

2  Congr.  Debates,  vol.  X,  part  I,  ist  Sess.,  23d  Congr.,  p.  94. 


United  States  Senate.  87 

Tyler  and  Johnson  by  their  use  of  the  veto  set  them- 
selves in  opposition  to  the  will  of  congress ;  and,  as 
under  Tyler  it  was  impossible  to  pass  bills  over  his  veto, 
great  deference  was  paid  to  his  wishes  in  the  hopes  of 
securing  his  assent ;  but,  as  under  Johnson  the  majority 
was  large  enough  to  override  his  vetoes,  he  was  able  by 
this  means  to  exercise  but  little  influence. 

The  use  of  the  veto  to  defeat  other  than  unconstitu- 
tional legislation  was  first  objected  to  during  the  admin- 
istration of  Jackson.1  It  had,  without  question,  been 
extended  by  former  presidents  to  inexpedient  legisla- 
tion ;2  and  the  popular  appeals  on  the  subject,  beginning 
in  1832  and  running  down  to  1844,  resulted  in  a  verdict 
in  favor  of  a  large  and  liberal  discretion  on  the  part  of 
the  executive  in  the  exercise  of  this  power. 

Prior  to  Cleveland's  time  the  veto  power  had,  in  the 
main,  been  exercised  only  upon  theoretical  propositions 
or  political  questions  ;  and  his  liberal  application  of  it  to 
special  and  individual  legislation,  especially  to  pension 
cases  and  public  buildings,  aroused  considerable  opposi- 
tion. Some  held  that  the  president  had  no  right  to  ex- 
ercise this  power  on  a  mere  question  of  fact,  such  as 
whether  a  given  pension  ought  to  be  granted,  and  that 
it  was  not  the  duty  of  the  president  to  veto  every  bill 
which  he  should  vote  against  were  he  a  member  of  con- 
gress. Cleveland's  action,  however,  has  been  approved 
and  applauded  by  the  country. 

As  under  Jackson  the  control  of  the  legislature  by 
the  use  of  the  veto  was  greatly  increased,  so,  during  his 
presidency,  is  seen  the  beginning  of  the  use  of  patronage 
for  the  same  purpose, — a  means  of  influence  which  has 
constantly  increased,  though  checked  by  the  Civil  Serv- 
ice Reform,  which  diminished  the  number  of  offices  to 
be  disposed  of  by  the  president. 

1  Clay's  Works,  V,  524.     Webster,  Works,  IV,  86.     Congr.  Globe, 
ist  Sess.,  3oth  Congr.,  p.  898. 

2  Madison,  IV,  369.     Story,  Commentaries,  sec.  887. 


88  The  Origin  and  Development  of  the 

The  chief  influence  of  the  president  on  legislation  is 
exercised  through  the  heads  of  the  departments  who, 
unlike  those  of  the  continental  congress,  are  respon- 
sible to  the  president  only  and  not  to  congress.  At 
first,  with  one  exception,  the  cabinet  officers  were 
assigned  no  duties  toward  congress.  The  secretary  of 
the  treasury,  however,  was  required  to  "  digest  and  pre- 
pare plans,  to  report  estimates  and  give  information  in 
person  or  in  writing  to  either  branch  of  Congress  on 
subjects  relating  to  his  department."1  Objections  had 
been  made  to  allowing  the  secretary  to  report  in  person, 
because  it  was  feared  that  he  would  then  be  able  to  exert 
too  much  influence ;  and  this  reason  was  doubtless  influ- 
ential in  causing  the  senate,  when  Hamilton  was  about 
to  make  his  report  on  the  national  finances,  and  asked 
whether  it  should  be  made  in  person  or  in  writing,  to 
decide  in  favor  of  the  latter. 

Other  members  of  the  cabinet,  during  the  Frst  Con- 
gress, appeared  in  the  senate  chamber.  The  secretary  of 
foreign  affairs  was  twice  summoned  to  appear  before  the 
senate.2  The  president  on  several  occasions  sent  mes- 
sages by  his  secretaries  ;3  and,  in  one  instance,  General 
Knox,  on  two  successive  days,  accompanied  the  president 

1  Statutes  at  1/arge,    ist  Sess.,  ist   Congr.,  chap.  12,  sec.  2.     The 
reason  for  the  different  constitution  of  this  department  does  not  ap- 
pear in  the  debates,  but  Gallatin  suggests  that  its  object  was  to  give  to 
congress  direct  control  over  financial  matters  (Works,  I,  67);  which 
may  also  account  for  the  fact  that  while  the  titles  of  the  other  acts  es- 
tablishing the  departments  read  "An  Act  to  establish  an  Executive 
Department  to  be  denominated,"  etc.,  that  of  the  treasury  reads  simply 
"An  Act  to  establish  a  Treasury  Department." 

2  Exec.  Jour.,  vol.  I,  pp.  6,  7. 

3  In  the  ist  Sess.,  ist  Congr.,  two  messages  were  sent  by  Jay  (Sen. 
Jour.,  I,  89,  93),  and  six  by   General  Knox    (Exec.   Jour.,    I,  3,  26, 
34;  Sen.   Jour.,  I,  55,  56,   81).     At  the  next  session  four  messages 
were  sent  by  General  Knox  (Exec.  Jour.,  I,  36,  58  ;    Sen.  Jour.,    I, 
105,  107). 


United  States  Senate.  89 

in  the  senate  chamber ;  but  with  these  exceptions  no 
ministers  have  attended  in  the  senate.1  A  unanimous 
report  of  a  committee  of  eight  senators  in  February, 
1 88 1,  in  favor  of  giving  to  members  of  the  cabinet  seats 
in  both  houses  and  recommending  a  change  in  the  rules 
to  provide  for  this,  has  never  been  acted  upon. 

The  secretary  of  foreign  affairs,  whose  office  was  first 
created,  has  always  been  considered  as  at  the  head  of  the 
cabinet ;  though  for  some  time  after  the  organization  of 
the  government,  owing  to  the  deplorable  condition  of  the 
finances  and  the  importance  of  their  regulation,  and 
perhaps  also  to  the  character  of  the  occupants  of  the  of- 
fice, the  duties  of  the  secretary  of  the  treasury  were  more 
important.  While  the  office  was  held  by  Hamilton  and 
Gallatin,  it  exercised  the  most  influence  on  legislation, 
and  it  was  through  it  mainly  that  the  executive  influence 
was  exerted. 

Before  Hamilton  entered  upon  his  duties  congress  had 
been  awkwardly  struggling  with  the  revenue,  and  when 
he  was  appointed,  it  turned  eagerly  to  him  for  assistance. 
Not  only  were  the  plans  submitted  by  him  usually 
adopted  but  others  were  demanded  of  him.  Frequent 
calls  for  information  were  also  made,  and  a  couple  of  the 
replies  of  Hamilton  to  such  requests,  which  he  consid- 
ered demanded  too  much,  show  a  boldness  and  independ- 

1  So  far  as  I  have  been  able  to  discover,  these  were  the  only  in- 
stances in  which  secretaries  attended  in  the  senate,  butBenton  says,  in 
his  "Abridgement  of  the  Debates  of  Congress"  (I,  16,  note):  "These 
entries  in  relation  to  the  Secretary  of  Foreign  Affairs  show  the  early 
method  of  communicating  with  the  Secretaries,  being  called  before 
the  Senate  to  give  explanations  and  bring  papers — a  method  now 
superseded  by  reports.  The  early  Senators  lamented  the  change,  be- 
lieving the  old  way  to  be  the  best  for  getting  the  information  that  was 
wanted,  and  also  the  best  security  against  the  appointment  of  incom- 
petent Secretaries."  And  Woodrow  Wilson  says  in  his  "Congressional 
Government"  (p.  257):  "Before  the  Republican  reaction  which  fol- 
lowed the  supremacy  of  the  Federalists  the  heads  of  the  departments 
appeared  in  person  before  the  houses  to  impart  desired  information 
and  to  make  what  suggestions  they  might  have  to  venture." 


90  The  Origin  and  Development  of  the 

ence  which  a  cabinet  officer  of  the  present  time  would 
hardly  dare  assume.1  Jefferson,  who,  it  must  be  remem- 
bered, was  an  opponent  of  Hamilton,  early  thought  that 
his  department  had  an  undue  influence  over  the  members 
of  the  legislature.2 

During  the  civil  war  the  importance  of  the  secretary 
of  the  treasury  again  became  great,  and  his  influence 
ever  since  has  been  considerable. 

The  treasury  department  being  so  important  in  the 
First  Congress,  the  need  of  annual  reports  from  it  was 
felt  earlier  than  in  the  other  departments.  Hamilton 
had  been  accustomed  to  send  in  a  statement  of  the  ex- 
penses for  the  past  fiscal  year,  together  with  an  estimate 
of  the  accountant.  As  this  was  found  inadequate  it 
was  later  provided  :  "  That  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury  to  digest,  to  prepare,  and  to 
lay  before  Congress  at  the  commencement  of  every  ses- 
sion, a  report  on  the  subject  of  finance,  containing  esti- 
mates of  the  public  revenue  and  public  expenditures, 
and  plans  for  improving  or  increasing  the  revenues  from 
time  to  time,  for  the  purpose  of  giving  information  to 
Congress  in  adopting  modes  of  raising  money  requisite 
to  meet  the  public  expenditures."3  As  time  went  on 
statutes  were  passed  making  annual  reports  to  congress 
on  other  subjects  obligatory.  A  little  later  annual  re- 
ports from  the  other  departments  were  also  demanded. 

Besides  the  annual  reports  of  the  secretaries  the  sen- 
ate is  accustomed  to  ask  for  special  reports  on  subjects 
relating  to  their  departments.  These  calls  for  informa- 
tion are  most  frequent.  Even  during  the  earlier  years 
they  were  numerous  enough  to  occasion  considerable  in- 
convenience, and  in  later  times  they  have  led  to  propo- 

1  Works,  ed.  by  J.  C.  Hamilton,  III,  pp.  447,  588.     Report  of  Feb.  6, 
1794- 

2  Jefferson,  Works,  III,  461,  and  IX,  95. 

3  Statutes  at  Large,  II,  80. 


United  States  Senate.  91 

sals  for  the  restriction  of  this  unlimited  right.1  Some- 
times the  secretaries  are  not  only  asked  for  facts,  but  also 
for  opinions,2  and  sometimes  even  for  the  project  of  a 
bill. 

Besides  the  calls  made  by  the  senate  itself,  frequent 
calls  are  also  made  by  the  committees ;  and,  especially  of 
late,  it  is  mainly  through  these  that  the  senate  obtains 
what  information  it  wants,  and  that  the  influence  of  the 
secretaries  is  exerted.  Either  the  chairman  or  some 
member  of  the  committee  will  call  upon  the  secretary  to 
obtain  the  desired  information,  or  the  secretary  will  be 
summoned  before  the  committee  to  give  his  opinions  or 
to  make  explanations  and  defend  his  plans.  Sometimes 
also  the  secretaries  are  called  upon  for  projects  of  bills. 
In  later  years  they  are  not  accustomed  to  wait  for  the 
committee  to  call  upon  them  for  their  opinions,  but 
themselves  take  the  initiative,  either  waiting  upon  the 
committee  or  its  chairman  or  some  member  of  the  com- 
mittee for  this  purpose.  Sometimes  a  secretary  acts 
directly  upon  the  senate  by  inducing  some  senator  to 
introduce  a  bill  framed  in  his  department.3 

The  influence  which  the  executive  department  is  able 

1  As  for  a  rule  requiring  all  calls  to  be  referred  to  a  committee  before 
they   were  voted  upon    (Congr.   Globe,   2d  Sess.,  4oth  Congress,  p. 
2090),  and  for  a  rule  requiring  resolutions  to  lie  over  one  day,  which  Mr. 
Webster  said  was  caused  by  the  increased  practice  of  making  calls  up- 
on the  departments. 

2  Hamilton  especially  was  frequently  asked  for  his  opinions.     Ob- 
jections were  made  to  such  calls  on  the  ground  that  they  gave  an  un- 
due influence  to  the  secretary  ;   and,   at  the  second  session  of  the 
Twenty-second  Congress  (Congr.  Deb.,  vol.  IX,  parti,  u,  27,  50-59), 
the  senate  refused  to  make  such  a  call,  though  at  the  previous  session 
such  a  call  had  been  made.     In  the  second  session  of  the  Twenty-fifth 
Congress,  the  senate  again  refused  to  call  for  opinions.    (Congr.  Globe, 

Pp.  58,  59-) 

3  For  example,  the    Mills  Tariff  Bill,   the    Fishery   Bill,    and  the 
Chinese  Exclusion  Bill. 


92  The  Origin  and  Development  of  the 

to  exert  upon  legislation  by  all  these  means  is  very  con- 
siderable.1 

VIII.      RELATIONS  OF  THE  SENATE  AND  HOUSE  OF  REPRESENTATIVES 
IN   LEGISLATION. 

The  first  senate  manifested  many  aristocratic  tenden- 
cies. The  majority  wished  to  establish  a  government 
which  should  be  dignified  and  awe  inspiring.  This 
appeared  very  prominently  in  the  debates  over  the 
titles  to  be  applied  to  the  president  and  vice  president,2 
which  occupied  the  senate  for  nearly  a  month,  and  the 
discussion  over  the  manner  in  which  senators  should  be 
referred  to  in  the  minutes.3  The  senate  did  not  forget 
that  it  was  the  upper  branch  of  the  legislature  and,  in 
various  ways,  showed  that  it  felt  itself  superior  to  the 
house.  Thus  when  a  bill  was  received  from  the  house 
which  began :  "Be  it  enacted  by  the  Congress  of  the 
United  States,"  it  was  amended  in  the  senate  to  read  : 
"Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives," Senator  Izard  declaring  that  the  "  dignity  and 
preeminence  of  the  Senate  was  the  thing  aimed  at "  in 
the  form  adopted  by  the  house.4 

The  same  disposition  was  again  shown  when  the  mode 
of  communication  between  the  two  houses  was  under 
consideration.  A  committee  of  the  two  houses,  after 
consultation,  agreed  to  a  report  which  provided  for  the 
sending  of  all  bills  to  the  house  by  the  secretary  of  the 
senate,  but  required  the  house  to  send  bills  to  the  senate 
by  two  of  its  members  and  all  other  messages  by  one 
member.5  The  house  refusing  to  agree  to  this,  and  an- 

1  See  3d  Sess.,  46th  Congr.,  Seu.  Reports,  No.  837.      Report  of  a 
committee  of  eight  senators  in  favor  of  allowing  secretaries  a  seat  in 
the  senate  and  house  of  representatives. 

2  Aimals  of  Congress,  ist  Sess.,  ist  Congr.,  pp.  34,  35,  36. 
8  Journal  of  Maclay,  pp.  64,  65. 

*Ibid.,  p.  1 6. 

6  Annals  of  Congress,  ist  Sess.,  ist  Congr.,  pp.  23,  24. 


United  States  Senate.  93 

other  conference  failing  to  bring  about  a  compromise, 
the  senate  agreed  to  receive  messages  by  the  clerk  of  the 
house,  until  a  rule  regulating  the  mode  of  procedure  was 
adopted ;  and  it  was  finally  left  to  each  house  to  send 
messages  by  the  persons  whom  a  sense  of  propriety 
would  dictate. 

The  senate  was  again  forced  to  give  up  its  pretensions 
when  the  subject  of  the  salaries  which  the  members  of 
congress  should  receive  was  under  consideration.  The 
house  bill  provided  for  the  same  compensation  for  sena- 
tors and  representatives,  but  in  the  senate  it  was  voted, 
thirteen  to  six,  that  there  ought  to  be  a  discrimination.1 
A  substitute  for  the  house  bill  was  then  adopted  which, 
while  leaving  the  salary  of  senators  and  representatives 
the  same  until  1795,  provided  that,  thereafter,  the  salary 
of  the  former  should  be  a  dollar  a  day  more.  The  house 
refused  to  agree  to  this,  and  a  bill  regulating  the  sal- 
ary until  1795,  and  granting  the  same  compensation 
to  members  of  the  two  houses,  was  finally  adopted.2 
When  the  question  was  again  brought  up  in  1895  the 
senate  no  longer  made  any  claims  for  a  higher  salary. 

The  practice  of  the  British  parliament,  where  the  two 
houses  were  entirely  independent  of  each  other,  was 
followed,  as  a  matter  of  course,  in  the  congress  of  the 
United  States  ;3  it  always  being  considered  out  of  order 
to  refer  in  one  house  to  the  debates,  votes,  or  majorities 
in  the  other.4  A  resolution,  introduced  in  the  senate  by 
Mr.  Hoar,  in  the  first  session  of  the  Forty-ninth  Congress, 
declaring  that  it  was  not  out  of  order,  when  a  private 
bill  was  under  consideration,  to  read  or  refer  to  a  report 
on  the  same  subject  made  in  the  house  of  representatives 

1  Sen.  Jour.,  I,  66. 
*  Ibid.,  I,  66,  67. 

3  Jefferson's  Manual,  sec.  XVII. 

4  Ibid. 


94  The  Origin  and  Development  of  the 

during  the  same  congress,1  was  referred  to  the  committee 
on  rules  and  not  brought  before  the  senate  again. 

Since  the  careful  reporting  and  publication  of  the 
proceedings  of  congress,  so  that  what  is  done  in  one 
body  is  immediately  known  everywhere,  this  prohibition 
against  reference  to  debates  practically  amounts  to  noth- 
ing ;2  and  the  influence  of  the  action  of  each  house  on 
the  other,  which  has  always  existed,3  has  greatly  in- 
creased ;  this  being  due  largely  to  the  increased  knowl- 
edge in  each  house  of  the  proceedings  of  the  other.4 

On  certain  subjects  of  minor  detail  which  involve  no 
question  of  public  policy,  the  two  houses  act  by  joint 
committees.5  Occasionally  also  a  joint  committee  on 
more  important  matters  has  been  appointed.  Such  was 
the  joint  committee  appointed  to  consider  the  expediency 
of  admitting  Missouri  into  the  Union,  and  that  to  con- 
sider the  expediency  of  a  change  of  Indian  policy.6 
Still  more  important  w^ere  the  joint  committees  on  re- 
construction created  after  the  civil  war. 

In  the  early  days  it  was  also  customary,  toward  the 
close  of  a  session,  to  appoint  a  joint  committee  to  decide 

'Congr.  Record,  ist  Sess.,  49th  Congr.,  5493.     Mr.  Hoar  said  that 
the  proposed  rule  embodied  the  recent  practice  of  the  senate. 
*Ibid.,  pp.  54,  93. 

3  In  1790  Mr.  Page  said  that,  occasionally,  there  were  heard  in  the 
house  such  expressions  as    "  We  hear  that  the  senate  did  so  and  so," 
and  that  the  argument  that  the  senate  would  not  agree  to  certain 
things  was  often  used  in  the  house.     (Penn.  Packet,  July  15,  1790.) 
In  1840,  the  fact  that  an  appropriation  bill  had  been  thoroughly  dis- 
cussed in  the  house  was  given,  in  the  senate,  as  a  reason  for  its  imme- 
diate passage  (Congr.  Globe,   ist  Sess.,  26th  Congr.,  p.  375);  and  in 
the  first  session  of  the  Forty-first  Congress  Mr.  Potneroy  said  :  "  It  is  a 
constantly  growing  practice  here  in  the  Senate — it  was  not  so  formerly 
but  it  has  become  so  within  the  last  year  or  two— to  threaten  us  with 
the  action  of  the  House  ;  to  tell  us  that  if  you  do  so  and  so  the  House 
will  not  agree  to  it,  and  if  you  do  so  and  so  the  President  or  some 
other  department  will  not  agree  to  it."     (Congr.  Globe,  p.  25.) 

4  So  says  Mr.  Hale,  Congr.  Record,  ist  Sess.,  49th  Congr.,  pp.  54,  93. 

5  As  committee  on  engrossed  bills,  committee  on  the  library. 
c  Congr.  Globe,  2d  Sess.,  4ist  Congr.,  p.  2639. 


United  States  Senate.  95 

on  the  time  for  adjournment  and  the  business  which 
should  be  acted  upon  during  the  remainder  of  the  ses- 
sion. This  came  to  be  objected  to,  both  because  of  its 
inexpediency  and  uselessness,  as  the  committee  usually 
recommended  new  subjects  to  be  considered  instead  of 
those  which  had  already  been  matured  in  one  house,1 
and  the  recommendations  were  usually  disregarded ;  and 
because  the  business  of  the  two  houses  ought  not  to  be 
mixed.2 

The  most  important  of  all  the  joint  committees  are 
the  committees  of  conference,  for  to  them  now  are 
usually  referred  all  the  important  matters  which  come 
before  congress.  The  power  of  the  conference  commit- 
tees is  very  great,  especially  near  the  end  of  the  session 
when  there  is  no  time  to  examine  their  report,  and  it  is 
unusual  for  the  report  even  to  be  read,  it  being  adopted 
or  rejected  on  the  recommendation  of  the  chairman,  who 
gives  a  brief  statement  of  its  contents.  Even  that,  how- 
ever, is  sometimes  omitted. 

Although  the  senate  was,  with  one  exception,  given 
the  same  legislative  power  as  the  house,  the  most  impor- 
tant measures  were  generally  introduced  in  the  house, 
in  the"  early  days ;  and  the  house  was  much  more  active 
than  the  senate  in  the  initiation  of  legislation.  Thus  in 
the  First  Congress  the  house  passed  and  sent  to  the  sen- 
ate about  six  times  as  many  bills  as  the  senate  to  the 
house,  and  of  the  bills  which  became  laws  about  the 
same  proportion  were  introduced  in  the  house.  The 
work  of  revision  and  amendment  of  the  house  bills,  to 
which  the  senate  devoted  more  time  than  to  the  origin- 
ating of  bills  of  its  own,  was  carefully  and  thoroughly 
done,  as  shown  by  the  number  of  amendments  made  to 
the  house  bills  and  by  the  accoants  of  the  debates  given 

1  Congr.  Deb.,  vol.  IV,  part  I,  ist  Sess.,  2oth  Co^gr.,  p.  690. 
2 Ibid.,  p.  691. 


g6  The  Origin  and  Development  of  the 

in  u  Maclay's  Journal."1  The  senate,  however,  did  not 
long  leave  to  the  house  such  a  preponderating  part  in 
the  origination  of  legislation.  Its  activity  gradually  in- 
creased, and,  in  the  Tenth  Congress,  while  the  senate  in- 
troduced and  passed  fifty-four  bills,  the  house  introduced 
and  passed  but  eighty-one.  From  that  time  until  recently 
the  proportion  has  remained  about  the  same  in  general, 
though  sometimes,  as  in  the  Twentieth  Congress,2  the  num- 
ber of  its  own  bills  passed  by  the  senate  has  nearly  equaled 
the  number  of  house  bills  passed  by  the  house,  and 
occasionally,  as  in  the  special  session  of  the  Fortieth  Con- 
gress the  senate  has  even  surpassed  the  house  in  the 
number  of  its  own  bills  which  it  has  passed.3  At  the 
Forty-ninth,  Fiftieth,  and  Fifty-first  Congresses  the  num- 
ber of  senate  bills  passed  by  the  senate  nearly  equalled 
the  number  of  house  bills  passed  by  the  house,  and  in 
the  Fifty-second  Congress  surpassed  it.4 

The  proportion  of  house  and  senate  bills  that  have 
become  laws  has  been  about  the  same  as  the  proportion 
of  its  own  bills  passed  by  each  house,  except  that  the 
recent  increase  in  the  number  of  its  own  bills  passed  by 
the  senate  has  not  been  accompanied  by  a  corresponding 
increase  in  the  number  of  senate  bills  which  have  be- 
come laws.  Up  to  this  time,  though  the  house  had  not 
passed  as  many  senate  bills  as  the  senate  had  house  bills, 
the  house  had  passed  about  as  large  a  proportion  of  the 
senate  bills  sent  it,  as  the  senate  of  the  house  bills  ;  but 
now,  while  the  senate  sends  to  the  house  nearly  as  many 
or  even  more  bills  than  the  house  to  the  senate,  about 
three  times  as  many  house  bills  have  become  laws. 

1  During  the  first  session  of  the  First  Congress  the  senate  amended 
all  but  two  of  the  house  bills  in  which  it  concurred. 

2  At  the  first  session  of  the  Twentieth  Congress  the  senate  passed 
119  of  its  own  bills  and  the  house  132  of  its. 

3  The  senate  passed  31  of  its  bills  and  the  house  24  of  its. 
*Congr.  Record,  ist  Sess.,  52d  Congr.,  vol.  23,  part  I,  pp.  820,  821  ; 

Public  Opinion,  April  12,  1894. 


United  States  Senate.  97 

Usually  bills  were  taken  up  in  their  order,  preference 
being  given  to  neither  senate  nor  house  bills  j1  but  the 
great  increase  in  the  amount  of  business,  and  the 
failure  of  the  house  to  act  upon  anything  like  all  the 
bills  sent  it  by  the  senate,  has  of  late  led,  on  several  oc- 
casions, to  the  adoption  of  a  resolution  giving  prefer- 
ence to  house  bills.2  This  was  advocated  on  the  ground 
that  there  were  already  on  the  house  table  more  senate 
bills  than  it  could  possibly  act  upon,  and  objected  to  be- 
cause it  would  increase  the  discrimination  already  exist- 
ing between  the  two  houses,  in  regard  to  the  origina- 
tion of  bills,  until  the  house  would  claim,  as  practically 
its  prerogative,  the  introduction  of  all  bills.  A  joint 
rule,  proposed  by  the  senate,  providing  that  each  house 
during  the  last  days  of  the  session,  in  proceeding  with 
the  calendar,  should  take  up  the  business  from  the  other,3 
was  not  adopted  by  the  house ;  and  thus  each  house  is 
still  left  free  to  do  as  it  likes. 

From  the  time  of  the  great  debate  over  the  Missouri 
Compromise,  until  the  end  of  the  civil  war,  most  of 
the  important  measures  were  introduced  in  the  senate  ;4 
but,  since  the  war,  and  the  settlement  of  the  great  prob- 
lems of  reconstruction,  the  questions  of  most  importance 
to  the  nation  being  those  of  an  economic  nature,  the 
senate  has  now  lost  its  preeminence  in  this  respect. 

1  A  motion  made  in  the  first  session  of  the  Sixteenth  Congress  for 
a  rule  which  practically  would  have  given  the  preference  to  house  bills 
was  laid  on  the  table.     (Congr.  Deb.,  vol.  I,  p.  613.)     At  the  second 
session  of  the  Seventeenth  Congress  preference  was  given  to  senate 
bills.     (Annals  of  Congr.,  p.  288.) 

2  Congr.  Record,  $d  Sess.,  46th  Cougr.,  pp.   2108,   2109  ;  2d  Sess., 
48th  Congr.,  pp.  303,  304,  1707. 

3  Ibid.,  ist  Sess.,  49th  Congr.,  p.  186,  Rule  10. 

4  For  example,  the  measures  regarding  Texas  and  Oregon,  the  ad- 
mission of  Iowa  and  Florida,  the  Kansas  and  Nebraska  Bills. 


CHAPTER  IV. 


THE   SENATE   AS  AN   EXECUTIVE   BODY. 

I.      SECRET  SESSIONS. 

IN  the  early  days,  when  all  the  sessions  of  the  senate 
were  held  behind  closed  doors,  the  distinction,  now  very 
important,  of  the  admission  or  non-admission  of  the  public 
to  the  respective  sessions,  was  absent.  While  the 
legislative  sessions  were  soon  made  public,  the  executive 
sessions  have  constantly  tended  toward  greater  secrecy. 

Though  at  first  all  business  was  transacted  with  closed 
doors,  there  was  no  rule  requiring  it  to  be  kept  secret ; 
and  that  it  was  not  so  considered  is  evident,  in  spite  of 
the  fact  that  Maclay  says  the  contrary,1  from  the  fact 
that  it  was  thought  necessary  to  impose  a  special  in- 
junction of  secrecy  whenever  it  was  desired  to  keep 
anything  from  the  public.  Moreover,  the  legislative 
business  could  not  have  been  regarded  as  secret,  since 
provision  was  at  once  made  for  its  monthly  publication.2 
This  order  related  to  the  legislative  proceedings  only, 
and  at  the  same  time  it  was  ordered  that  the  proceedings 
in  executive  session  should  be  recorded  in  a  separate 
book.  There  are,  however,  some  indications  that  the 
executive  proceedings  were  also  published.  Thus  at 
the  first  session  of  the  First  Congress  provision  was 
made  for  sending  "  a  printed  copy  of  the  Journals  of 
both  Houses,  at  the  end  of  every  session  of  Congress,  to 
the  Executive  of  each  State  and  to  the  Legislature  there- 
of ;  "3  and  in  1792  a  resolution  was  adopted  by  the  senate 

1  Rule  XI  given  by  Mr.  Maclay  provides:  "  Inviolable  secrecy  shall 
be  observed  with  respect  to  all  matters  transacted  in  the  Senate,  while 
the  doors  are  shut,  or  as  often  as  the  same  is  enjoined  from  the  Chair." 

3  Sen.  Jour.,  vol.  I,  p.  27. 

3  Annals  of  Congress,  ist  Sess.,  ist  Congr.,  p.  96. 


United  States  Senate.  99 

in  executive  session  providing  "  That  no  executive 
business  in  the  future  be  published  by  the  Secretary  of 
the  Senate."1  A  resolution  proposed  in  1791,  authoriz- 
ing the  secretary  of  the  senate  to  "  furnish  the  members 
of  the  Senate,  when  required,  with  extracts  of  such 
parts  of  the  Executive  Journal  as  are  not,  by  vote  of  the 
Senate,  considered  secret,"2  would  indicate  that  the 
"  Executive  Journal "  was  not  considered  secret ;  and 
later,  we  find  senators  maintaining  that  it  was  open  to 
inspection.3  In  1806,  however,  in  the  revision  of  the 
rules  it  was  provided  that  extracts  from  the  executive 
records  should  not  be  furnished  except  by  special  order.4 

Motions  for  opening  the  doors  of  the  senate  to  the 
public,  which,  beginning  with  the  second  session  of  the 
First  Congress,  were  renewed  in  every  subsequent  session 
until  the  desired  object  was  attained,  provided  for  so  do- 
ing only  when  the  senate  was  acting  in  its  legislative, 
or  legislative  and  judicial  capacities.  Apparently  no 
one  desired  open  sessions  when  executive  business  was 
being  transacted. 

The  first  rule  imposing  secrecy  was  not  passed  until 
the  twenty-second  of  December,  1800,  some  time  after 
the  legislative  business  had  been  transacted  in  public. 
This  rule,  suggested  by  President  Adams  at  a  time 
when  foreign  relations  were  threatening,  provided:  "  That 
all  confidential  communications  made  by  the  President 
of  the  United  States  to  the  Senate,  shall  be,  by  the 
members  thereof,  kept  inviolably  secret ;  and  that  all 
treaties  which  may  hereafter  be  laid  before  the  Senate, 
shall  also  be  kept  secret,  until  the  Senate  shall,  by  their 
resolution,  take  off  the  injunction  of  secrecy."5 

1  Exec.  Jour.,  I,  100. 

2  Res.  of  January  21,  1791,  which  was  never  called  up.     (Annals  of 
Congr.,  p.  1792). 

3  Annals  of  Congress,  2d  Sess.,  7th  Congr.,  pp.  38,  39. 

4  Annals  of  Congress,  ist  Sess.,  9th  Congr.,  p.  203,  Rule  32. 

5  Exec.  Jour.,  vol.  I,  p.  361. 


ioo  The  Origin  and  Development  of  the 

At  first  all  papers  communicated  by  the  president 
upon  executive  business  were  held  to  be  confidential,1 
but  after  1830  only  such  communications  as  were 
marked  "  confidential  "  were  so  considered.2  The  senate 
had  earlier  decided,  in  connection  with  the  Panama 
mission,  that  it  had  a  right  to  publish  confidential  com- 
munications of  the  president,  and  to  discuss  them  in 
public,  without  the  assent  of  the  president,  whenever 
they  thought  the  public  interest  required  it.3  John 
Quincy  Adams,  who  at  that  time  was  president,  declared 
such  a  course  to  be  unprecedented.4 

For  some  time  there  was  no  rule  regarding  secrecy  in 
the  consideration  of  nominations  and  they  were  com- 
municated by  senators  without  reserve.5  Proposals,  made 
in  1813,  for  the  adoption  of  a  rule  imposing  secrecy 
upon  nominations  were  not  considered  ;6  and  it  was  not 
until  1820  that  it  was  ordered  that  u  All  information  or 
remarks,  touching  or  concerning  the  character  or  quali- 
fications of  any  person  nominated  by  the  President  to  of- 
fice," should  be  considered  secret.7  It  would  seem,  howev- 
er, that,  before  this,  it  had  come  to  be  the  custom  to  keep 
such  matters  secret ;  for,  a  couple  of  years  earlier  when 
the  proceedings  which  took  place  in  the  senate  on  a  cer- 
tain nomination  were  desired  as  evidence  in  the  courts, 
the  resolution  which  it  was  thought  necessary  to  intro- 
duce authorizing  senators  to  relate  those  proceedings, 
was  voted  for  by  one  senator  only.8  The  rule  adopted 
in  1820  was  interpreted  as  imposing  secrecy  upon  the 
votes  of  individuals,  since  they  were  the  expression  of 

1  Congr.  Deb.,  vol.  II,  p.  145,  and  Exec.  Jour.,  vol.  IV,  p.  122. 

2  Exec.  Jour.,  vol.  IV,  pp.  122  ff. 

3  Congr.  Deb.,  vol.  II,  p.  147. 

*  Ibid.,  p.  146,  and  J.  Q.  Adams,  Works,  vol.  VII,  p.  117. 

5  Annals  of  Congress,  2d  Sess.,  7th  Congr.,  p.  49. 

6  Exec.  Jour.,  II,  374,  392. 

7  Rule  37. 

8  Exec.  Jour.,  Ill,  114. 


United  States  Senate.  101 

an  opinion,  but  not  upon  the  fact  of  nomination,  con- 
firmation, or  rejection,  or  the  state  of  the  vote,  nor  was 
it  held  to  contain  a  prohibition'  against  eacvh^  senator 
telling  how  he  had  himself, ^otea.1 

The  removal  of  the  injunction.  «£  rsfecietyts  tioV/more 
common  than  in  the  early  days.  Prior  to  1828  it  was  of 
rare  occurrence,  and  confined  principally  to  the  proceed- 
ings on  treaties  or  nominations,  and  seldom  extended  to 
documents.2 

For  a  long  time  there  was  no  provision  for  giving  a 
nominee  an  opportunity  to  defend  himself  against  any 
charges  brought  forward ;  but  in  1877  it  was  provided 
that,  when  such  charges  were  made,  the  committee 
might,  at  its  discretion,  notify  such  nominee  thereof, 
but  the  name  of  the  person  making  such  charges  should 
not  be  disclosed.3  Under  this  rule  it  became  the  cus- 
tom, when  serious  charges  were  made  against  a  nominee, 
to  allow  him  an  opportunity  to  defend  himself. 

Despite  the  injunctions  and  rules  imposing  secrecy, 
what  is  transacted  in  executive  session  has  always  be- 
come known.  Thus,  Mr.  Forsyth  said  in  1831  that: 
"  It  was  soon  found,  as  the  Government  moved  on,  that 
if  a  desire  was  felt  that  any  subject  should  be  bruited 
about  in  every  corner  of  the  United  States,  should  become 
a  topic  of  universal  conversation,  nothing  more  was  neces- 
sary than  to  close  the  doors  of  the  Senate  Chamber,  and 
make  it  the  object  of  secret,  confidential  deliberation. 
Our  own  experience  shows  that,  in  this  respect,  there 
has  been  no  improvement :  the  art  of  keeping  state  se- 

'  Exec.  Jour.,  IV,  122,  Committee  Report.  Clayton  said  in  1854  that 
the  principles  laid  down  in  this  report  had  since  governed  the  action  of 
the  senate.  By  rule  40  of  those  adopted  in  1868  and  rule  73  of  those 
adopted  in  1877  it  was  provided  that  the  votes  of  individuals  should 
be  secret,  but  that  the  fact  of  nomination,  confirmation,  or  rejection 
should  not  be  considered  secret. 

2  Exec.  Jour.,  VI,  pp.  18-19. 

3  Congr.  Record,  2d  Sess.,  44th  Congr.,  p.  659,  Rule  73. 


102  The  Origin  and  Development  of  the 

crets  is  no  better  understood  than  it  formerly  was. m  Nor 
did  this  art  become  better  understood  as  time  went  on. 
In  1869;'-  vhe  Ney,y  {V'ork  Times,  apropos  of  the  pub- 
lication of  the  Hale-Perry  correspondence,  said  :  "The 
fact  that'  all"  tHe  proceedings  of  the  Senate  in  executive 
session  are  regularly  disclosed  and  made  public,  would 
naturally  suggest  the  absurdity  of  keeping  up  such  a 
hollow  sham  any  longer.  It  simply  allows  certain  news- 
papers to  trade  on  the  lack  of  honor  of  certain  sena- 
tors."2 Similar  expressions  may  be  found  at  almost  any 
time,  and  the  ease  with  which  what  is  transacted  in 
executive  session  at  the  present  time  becomes  known, 
needs  no  example. 

At  first  the  honor  of  senators  had  been  trusted  to  keep 
secret  the  executive  proceedings,  but  a  breach  of  the 
rules  in  1844*  by  a  senator  who  furnished  to  a  news- 
paper, for  publication,  documents  communicated  in  con- 
fidence to  the  senate,  led  to  the  enactment  of  a  rule 
providing  that :  "  Any  officer  or  member  of  the  Senate, 
convicted  of  disclosing  for  publication  any  written  or 
printed  matter  directed  by  the  Senate  to  be  held  in  con- 
fidence, shall  be  liable,  if  an  officer,  to  dismissal  from 
the  service  of  the  Senate,  and  in  the  case  of  a  member 

1  Congr.  Deb.,  vol.  VII,  2d  Sess.,  2ist  Congr.,  p.  294. 

2  New  York  Daily  Times,  April  21,  1869,  p.  6. 

3  Two  earlier  breaches  of  the  rules  had  been  known  to  the  senate. 
The  first  was  committed  by  Senator  Mason,  who,  when  a  sketch  of 
the  Jay  treaty,  upon  which  an  injunction  of  secrecy  had  been  im- 
posed, was  published  by  the  Aurora,  during  the  recess  of  congress, 
sent  his  copy  of  the  treaty  to  the  paper.     This  action  was  highly  ap- 
proved of  by  some  senators  and  was  taken  no  notice  of  officially  by 
the  senate.     The  other  breach  of  the  rules,  which  called  forth  a  reso- 
lution of  censure,  was  committed  by  General  Pickering,  who  read  in 
public  session  a  confidential  communication  of  the  president ;  but,  as 
it  was  several  years  after  its  receipt,  and  as  it  had  in  the  meantime 
been  published  in  a  newspaper,  the  resolution  of  censure  was  thought 
by  many  to  be  undeserved.     (Annals  of  Congr.,  3d  Sess.,  i  ith  Congr., 
pp.  67-83. ) 


United  States  Senate.  103 

to  suffer  expulsion  from  the  body."1  Later  the  rules 
provided  for  the  infliction  of  the  same  penalty  upon  one 
revealing  the  "  secret  or  confidential  proceedings  of  the 
Senate."2  No  senator  has  ever  been  expelled  under  this 
rule  and  yet,  as  has  been  seen,  the  proceedings  in  execu- 
tive session  have,  nevertheless,  continued  to  be  known. 
This  inability  to  keep  secret  what  is  done  in  execu- 
tive sessions  has  been  one  of  the  arguments  most 
frequently  urged  in  favor  of  their  abolition.  Other 
objections  made  to  them  are  that  they  are  undemoc- 
ratic, that  they  are  an  evasion  of  official  duty  and 
responsibility,  and  that  the  people  have  a  right  to  know 
what  is  being  done.  Many,  like  Mr.  Sherman,  even 
consider  the  secret  sessions  unconstitutional,  holding 
that  the  clause  of  the  constitution  authorizes  secrecy 
only  in  particular  cases,  and  not  as  a  general  rule.  But 
perhaps  the  strongest  argument  against  them  is  the  op- 
portunity thus  offered  for  partizanship  and  corruption*; 
and  especially  for  the  operation  of  the  spoils  system  and 
that  strange  form  of  dictation  which  is  the  result  of  the 
so-called  "  Courtesy  of  the  Senate,"  whose  existence 
many  think  is,  in  the  main,  due  to  the  privacy  of  execu- 
tive sessions.  The  assertions  frequently  made  by  sena- 
tors, as  well  as  by  others,  that  stories  are  told  and  things 
said  in  secret  session  which  never  would  be  in  open 
session,  tend  to  confirm  this  view.  Occasionally,  during 
the  first  half  century  of  the  government,  proposals  were 
made  for  the  abolition  of  secrecy  in  executive  sessions, 
and  from  about  1840  to  1868  such  proposals  were  very 
frequent.  After  that  little  attention  seems  to  have 
been  paid  to  the  matter  until  about  1885,  since  which 
time  there  has  been  much  agitation  of  the  subject  and 
frequent  proposals  for  a  change  made. 

1  Exec.  Jour.,  VI,  pp.  270,  273. 

2  Congr.  Globe,  2d  Ssss.,  4oth  Congr.,  p.  1630,  Rule  50. 


104  The  Origin  and  Development  of  the 

II.      NOMINATIONS. 

When  the  first  nominations  of  the  president  came  be- 
fore the  senate  for  concurrence,  it  was  resolved  that  the 
consent  of  the  senate  should  be  given  by  ballot.1  In 
the  discussion,  this  method  was  objected  to  on  the 
ground  that  it  was  beneath  the  dignity  of  the  senate, 
which  should  be  open,  bold,  and  unawed  by  any  consid- 
eration whatever,  and  because  it  would  be  productive  of 
caballing  and  bargaining  for  votes.  A  few  days  later 
an  attempt  to  reverse  the  decision  failed ;  but,  when  an 
expression  of  Washington  in  favor  of  a  viva  voce  vote 
had  been  secured,2  this  method  was  adopted  by  the 
senate.3 

Washington's  suggestions  regarding  the  mode  of  com- 
munication to  be  observed  between  the  president  and 
senate  were  also  adopted.  The  senate  seems  to  have 
been  in  favor  of  oral  communications.4  To  the  com- 
mittee appointed  to  confer  with  him  on  the  subject 
Washington  said  : 

"  Oral  communications  may  be  proper,  also,  for  discuss- 
ing the  propriety  of  sending  representatives  to  foreign 
ports,  and  ascertaining  the  grade,  or  character,  in  which 
they  are  to  appear,  and  may  be  so  in  other  cases. 

"  With  respect  to  nominations  my  present  ideas  are, 
that,  as  they  point  to  a  single  object,  unconnected  in  its 
nature  with  any  other  object,  they  had  best  be  made  by 
written  message.  In  this  case  the  acts  of  the  President 
and  the  acts  of  Senate  will  stand  upon  clear,  distinct  and 
responsible  grounds. 

"  Independently  of  this  consideration,  it  would  be  no 
pleasing  thing,  I  conceive,  for  the  President,  on  the  one 
hand,  to  be  present  and  hear  the  propriety  of  his  nomi- 

1  Exec.  Jour.,  I,  7. 

2  Washington,  Works,  vol.  XI,  p.  415. 

3  Exec.  Jour.,  vol.  I,  p.  19. 

4  Washington,  Works,  vol.  XI,  p.  415. 


United  States  Senate.  105 

nations  questioned ;  nor  for  the  Senate,  on  the  other 
hand,  to  be  under  the  smallest  restraint  from  his  pres- 
ence from  the  fullest  and  freest  inquiry  into  the  charac- 
ter of  the  persons  nominated."  l 

He  also  suggested  that  the  time,  place,  and  manner  of 
communication  should  be  left  to  the  president.  The 
opinions  of  Washington  having  been  reported  to  the 
senate,  it  was  : 

"  Resolved,  That  when  nominations  shall  be  made 
in  writing  by  the  President  of  the  United  States 
to  the  Senate,  a  future  day  shall  be  assigned,  unless 
the  Senate  unanimously  direct  otherwise,  for  taking 
them  into  consideration.  That  when  the  President  of 
the  United  States  shall  meet  the  Senate  in  the  Senate 
Chamber,  the  President  of  the  Senate  shall  have  a  seat 
on  the  floor,  be  considered  as  the  head  of  the  Senate,  and 
his  chair  shall  be  assigned  to  the  President  of  the  United 
States.  That  when  the  Senate  shall  be  convened  by  the 
President  of  the  United  States,  to  any  other  place,  the 
President  of  the  Senate  and  the  Senators  shall  attend  at 
the  place  appointed.  The  Secretary  of  the  Senate  shall 
attend  to  take  the  minutes  of  the  Senate.  That  all 
questions  shall  be  put  by  the  President  of  the  Senate, 
either  in  the  presence  or  absence  of  the  President  of  the 
United  States ;  and  the  Senators  shall  signify  their  as- 
sent or  dissent,  by  answering  viva  voce,  aye  or  no."2 

Although  provision  is  thus  made  for  the  president 
making  his  nominations  in  person  and  for  the  decision 
of  the  senate  upon  them  in  his  presence,  it  does  not  ap- 
pear that  this  method  was  ever  adopted,  even  in  the  case 
of  ambassadors,  which  Washington  had  thought  might 

1  Washington,  Works,  XI,  418.     He  said  further:  "It  is  probable 
that  the  place  may  vary.     .     .     .     Whenever  the  government  shall 
have  buildings  of  its  own,  an  executive  chamber  will  no  doubt  be 
provided,  where  the  Senate  will  generally  attend  the  President." 

2  Exec.  Jour.,  I,  p.  19.     This  rule  is  still  found  among  the  senate 
rr.les. 


io6  The  Origin  and  Development  of  the 

be  advisable.  .Had  the  other  method  been  followed,  the 
influence  of  the  president  would  undoubtedly  have  been 
increased,  and  the  independence  of  the  senate  decreased  ; 
so  that  it  may  well  be  doubted  whether  there  would 
have  grown  up  that  freedom  of  dealing  with  the  presi- 
dent's nominations  which  now  makes  it  necessary  for 
him,  if  he  wishes  his  nominations  confirmed,  to  first 
confer  with  and  obtain  the  consent  of  the  senators  from 
the  state  for  which  the  nomination  is  made. 

In  the  early  days  of  the  senate,  that  part  of  the  rule 
which  provides  that  a  nomination  shall  not  be  consid- 
ered the  same  day  that  it  is  received  was  frequently 
set  aside,  the  nomination  being  considered  as  soon 
as  received ;  or,  if  it  was  laid  upon  the  table  for  a 
few  days,  "  wThen  called  up  for  consideration  the  mem- 
bers of  the  state  interested  in  the  appointment  would 
give  the  Senate  what  information  they  might  pos- 
sess regarding  the  person  nominated,  occasionally  other 
members  would  give  their  opinions,  and,  on  these 
statements,  the  senators  relied."1  Ordinarily  only 
when  the  person  nominated  was  unknown  or  charges 
were  made  against  him,  or  in  case  of  nomination  of 
one  who  had  had  charge  of  the  disbursements  of 
money,  was  the  nomination  referred  to  a  committee. 
Sometimes  also  nominations  of  ministers  were  referred 
to  the  committee  on  foreign  affairs  to  inquire  regarding 
the  expediency  of  the  appointment.2 

A  proposal,  made  in  1822,  to  refer  all  nominations  to  the 
appropriate  standing  committee  was  tabled.3  With  the  in- 
creasing mvmber  of  nominations,  the  number  of  nominees 
regarding  whom  nothing  was  known  naturally  increased, 

1  Statement  of   Mr.  Johnson.      (Congr.    Debates,    2d    Sess.,    2oth 
Congr.,  p.  91.)     The  early  senators  also  frequently  consulted  mem- 
bers of  the  other  house  regarding  nominations.     (Annals  of  Congr,, 
ist  Sess.,  loth  Congr.,  p.  348.) 

2  Congr.  Globe,  2d  Sess.,  2oth  Congr.,  p.  91. 

3  Exec.  Jour.,  Ill,  pp.  294,  297. 


United  States  Senate.  107 

thus  necessitating  more  frequent  reference  to  commit- 
tees ;  but  it  was  not  until  1868  that  a  rule  was  adopted 
requiring  all  nominations  to  be  referred  to  the  appropri- 
ate standing  committee,  unless  otherwise  ordered.1  At 
the  same  time  it  was  provided  that  a  nomination  should 
not  be  considered  on  the  same  day  that  it  was  reported 
by  the  committee,  except  by  unanimous  consent. 

The  need  of  communication  between  the  president 
and  senate,  on  nominations,  soon  appeared.  The  rejec- 
tion by  the  senate  of  one  of  Washington's  early  nomi- 
nations, led  him  to  suggest  that  it  might  be  expedient, 
in  cases  in  which  nominations  seemed  questionable  to 
the  senate,  to  communicate  with  him,  that  he  might 
give  his  reasons  for  making  the  nomination  under  dis- 
cussion.2 In  pursuance  of  this  recommendation,  it  be- 
came customary,  in  case  of  doubt,  to  call  directly  by 
resolution  upon  the  president  or  heads  of  departments 
for  information  or  papers,  or  to  refer  the  nomination  to 
a  committee  to  look  into  the  matter.  In  one  of  the  first  \ 
cases  the  secretary  of  foreign  affairs  came  into  the  sen- 
ate by  invitation,  to  give  his  information.3  The  com- 
mittees often  summoned  the  heads  of  the  departments 
to  appear  before  them,  and  sometimes  even  waited  upon 
the  president.  The  latter  was  done  during  the  adminis- 
trations of  John  Adams,  Jefferson,  and  Madison  ;  but  the 
constitutionality  of  the  practice  was  questioned  both  by 
Adams  and  by  Madison  ;  and,  according  to  Mr.  Sedg- 
wick,  the  chairman  of  a  committee  which  waited  upon 
Adams  in  connection  with  the  nomination  of  Vans  Mur- 
ray as  minister  plenipotentiary  to  France,  and  who  him- 
self confessed  the  proceeding  to  be  "  an  infraction  of 
correct  principles,"  Adams  refused  to  consent  to  an  in- 
terview, until  it  was  agreed  that  it  should  be  strictly 

1  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  p.  1630,  Rule  37. 

2  Annals  of  Congress,  ist  Sess.,  1st  Congr.,  p.  61. 

3  Exec.  Jour.,  I,  6,  7. 


loS  The  Origin  and  Development  of  the 

unofficial.1  Madison  went  farther,  and  absolutely  refused 
to  confer  with  a  committee  specially  authorized  to  call 
upon  him,2  sending  to  the  senate  a  written  communica- 
tion in  which  he  pointed  out  that  the  appointment  of  a 
committee  to  confer  immediately  with  the  executive  lost 
sight  of  the  coordinate  relations  of  the  senate  and  the 
executive.3 

Besides  this,  there  was  then  a  great  deal  of  informal 
communication  and  intercourse,  though  not  as  much  as 
at  present,  both  before  and  after  nomination.  Thus 
Adams  writes  :  "  Great  pains  have  sometimes  been  taken 
by  Senators,  and  Representatives  too,  to  obtain  nomina- 
tions to  offices,  sometimes  for  themselves,  sometimes  for 
their  favorites ;  sometimes  with  success  and  sometimes 
without ;  m  and  Jefferson  expressed  surprise,  when  Short 
was  rejected  as  minister,  that  his  friends  in  the 
senate  had  not  informed  him  of  the  intention,  that  he 
might  have  given  his  reasons  for  the  nomination.  The 
efforts  of  senators  of  a  later  day  to  influence  nomina- 
tions are  too  well  known  to  need  examples. 

Of  the  agency  of  the  senate  in  appointments,  Hamil- 
ton had  said  :  u  It  will  be  the  office  of  the  President  to 
nominate,  and  with  the  advice  and  consent  of  the  Sen- 
ate to  appoint.  There  will,  of  course,  be  no  exertion  of 
choice  on  the  part  of  the  Senators.  They  may  defeat 
one  choice  of  the  Executive,  and  oblige  him  to  make 
another ;  but  they  cannot  themselves  choose — they  can 
only  ratify  or  reject  the  choice  of  the  President.  They 
might  even  entertain  a  preference  to  some  other  person, 

1  Hamilton,  Works,  ed.  by  J.  C.  Hamilton,  vol.  VI,  p  399. 

2  He  refused  to  meet  a  committee  to  whom  the  nomination  of  Gal. 
latin  had  been  referred  in  the  usual  way,  "to  inquire  and  report  to 
the  Senate,"  but  said  that,  if  they  were  specially  authorized  by  the 
senate,  he  would  receive  them  ;  yet,  when  they  were  so  authorized, 
he  still  refused  to  meet  them.     (Exec.  Jour.,  II,  pp.  353,  354. ) 

3  Exec.  Jour.,  II,  p.  382. 

4  J.  Adams,  Works,  VI,  p.  535- 


United  States  Senate.  109 

at  the  very  moment  they  were  assenting  to  the  one  pro- 
posed, because  there  might  be  no  positive  ground  of  op- 
position to  him  ;  and  they  could  not  be  sure,  if  they 
withheld  their  assent,  that  the  subsequent  nomination 
would  fall  upon  their  own  favorite,  or  upon  any  other 
person  in  their  estimation  more  meritorious  than  the 
one  rejected."  l 

Under  Washington  the  senate,  in  the  main,  confined 
itself  to  such  an  exercise  of  its  powers.  The  rejection 
of  a  nomination  because  of  the  hostility  of  the  sena- 
tors of  the  state  for  which  the  appointment  was  made,- 
and  their  preference  for  another,  met  with  a  sharp  rebuke 
from  Washington.2 

Though  Washington  demanded  a  careful  considera- 
tion of  his  nominations,  he  wished  to  have  the  holders 
of  office  such  as  the  senate  wished,  and  in  his  nomina- 
tions sought  to  choose  those  who  would  be  agreeable  to 
the   senate.      Thus,    in  1794,    when  Gouverneur    Mor- 
ris, minister  to  France,  was  very  unpopular  with  Repub- 
lican senators,  and  this  became  known  to  Washington, 
he  expressed  informally  a  willingness  to  recall  Mr.  Mor- 
ris, and  appoint  a  person  of  the  opposite  party,  if  they 
would  designate  a  fit  person.     Accordingly,  the  Demo- 
cratic senators  held  a  caucus  in  which  they  decided  to 
recommend  Burr.     A  committee,  consisting  of  Madison, 
Monroe,  and  another,  was  appointed   to  wait  on  Wash- 
ington  and    communicate  their    desires.     Washington, 
however,  refused  to  appoint  Burr,  saying  that  it  had 
been  a  rule   of   his   life   never  to  appoint  any  one  of 
whose  integrity  he  was  not  assured ;  but  that  if  they 
would  designate  a  person  in  whom  he  could  confide,  he 
would  nominate  him.     Another  caucus  was  accordingly 
held  at  which  it  was  unanimously  resolved  to  adhere  to 

1  Hamilton,  Works,  ed.  by  Ford,  vol.  IX.     "Federalist,"  p.  416,  No. 
LXVI. 

2  Exec.  Jour.,  I,  16,  17. 


1 10  The  Origin  and  Development  of  the 

the  former  decision.  Washington  then  showed  that, 
though  desirous  of  pleasing  senators,  he  would  not  suffer 
dictation,  and,  on  the  second  meeting  with  the  committee, 
and  their  insistence  on  their  former  choice,  he  told  them 
that  his  decision  was  irrevocable.  The  committee  still 
remained  inflexible,  and  Washington  finally  appointed 
Monroe.1 

With  the  accession  of  Adams  to  the  presidency,  there 
being  a  large  Federalist  majority  in  the  senate,  and  Ham- 
ilton the  real  leader  of  the  party,  conditions  were  favor- 
able for  the  senate  to  encroach  on  the  power  of  the  pres- 
ident. Adams  wrote,  in  regard  to  this,  that  combinations 
and  committees  of  senators  were  sent  to  him  to  remon- 
strate regarding  nominations  ;  and,  if  they  could  not 
prevail,  obtained  majorities  in  the  senate  against  the 
nominations.2  The  change  in  the  attitude  of  the  senate 
from  the  preceding  administration  is  shown  by  the  fact 
that,  though  Adams  had  many  less  nominations  to  make 
than  Washington,  eight  of  his  were  rejected,  and  nine  lost 
from  being  postponed  to  the  last  of  the  session,  while 
but  five  of  Washington's  were  rejected. 

Under  Jefferson,  as  under  Adams,  there  was  in  the 
senate  a  large  majority  of  the  party  of  the  president,  but 
Jefferson,  unlike  Adams,  being  the  real  leader  of  his  party, 
at  first  met  with  little  opposition  in  his  appointments, 
only  three  being  rejected  during  the  first  six  years. 
Toward  the  end  of  his  administration,  however,  a  disposi- 
tion to  control  him  in  the  exercise  of  this  power  appeared.3 
This  was  first  shown  in  the  rejection  of  Short  as  minis- 
ter to  Russia,  which*  indicated  the  termination  of  the 
individual  personal  influence  of  Jefferson  and  was  the 

1  Life  of  Burr,  I,  408,  409. 

2  Works,  VI,  535.     See  also  Ibid.,  IX,  301,  and  Jefferson,  Works, 
IV,  261. 

3  Statement  of  J.  Q.  Adams,  found  in  Adams,  Life  of  Gallatin,  389- 
390,  and  J.  Adams,  Works,  IX,  302. 

4  According  to  J.  Q.  Adams. 


United  States  Senate.  in 

forerunner  of  a  more  extensive  plan  for  influencing 
nominations  which  began  with  the  administration  of 
Madison. 

Under  both  Jefferson  and  Madison  this  dictation  of 
the  senate,  unlike  that  under  Adams,  was  effected  by  a 
small  knot  of  senators  operating  mainly  in  secret  ses- 
sion.1 During  Madison's  first  term  nineteen  nomina- 
tions were  rejected,  and  though,  when  the  actions  of 
these  senators  became  known  to  the  public,  the  prime 
movers  lost  their  popularity  and  were  compelled  to  re- 
tire from  the  senate,  the  seeds  of  usurpation  of  power 
by  the  senate  were  left  behind.  Thus  far,  however,  this 
action  of  the  senate  had  attracted  so  little  attention  that 
both  Kent  and  Story,  the  one  writing  in  1832  and  the 
other  in  1833,  take  no  notice  of  it.  Story  speaks  of  the 
senate  as  having  "  but  a  slight  participation  in  the  ap- 
pointments to  office,"2  and  Kent  says:  "Having  no 
agency  in  the  nomination,  nothing  but  simply  consent 
or  refusal,  the  spirit  of  personal  intrigue  and  personal 
attachment  must  be  pretty  much  extinguished,  for  a 
want  of  means  to  gratify  it."3 

Though  several  of  Jackson's  nominations  were  re- 
jected,4 they  were  so  bad  that  it  is  only  strange  that 
more  were  not.  He  also  attempted  to  coerce  the  senate 
by  renominations,  a  practice  which  was  then  new, 
though  since  followed  to  a  considerable  extent,  especially 
by  Tyler. 

With  the  withdrawal  of  Jackson  from  the  presidency, 
and  the  accession  of  a  man  who  did  not  enjoy  his 
great  popularity,  the  senate  was  once  more  able 

1  Adams,  Life  of  Gallatin,  pp.  389-391. 

2  Commentaries,  sec.  752. 

3  Commentaries,  Lecture  XIII,  vol.  I,  p.  288. 

4Niles'  Register,  vol.  46,  July  12,  1834,  p.  329  :  "It  is  stated  that 
the  Senate  at  the  last  session  confirmed  449  nominations  and  rejected 
only  17." 


ii2  The  Origin  and  Development  of  the 

to  make  its  influence  felt  in  nominations.1  This 
influence  was  the  result  of  a  practice,  followed  from  the 
first,  of  depending  upon  the  senator  from  the  state  for 
which  the  nomination  was  made  for  information  regard- 
ing it.  After  a  time  it  came  to  be  a  fixed  rule  that  a 
nomination  would  be  rejected  if  the  senator  of  the  state 
concerned  declared  it  to  be  unfit,2  and  finally  on  the 
mere  ground  that  the  nomination  was  personally  obnox- 
ious to  him.3 

With  the  full  establishment  of  this  practice  all  free- 
dom of  nomination  naturally  passed  from  the  president 
to  the  various  senators  and  members  of  congress,  the 
president  being  compelled,  if  he  wished  his  nominations 
confirmed,  to  first  obtain  the  approval  of  the  senators 
from  the  state  in  which  the  appointment  was  to  be 
made.4  The  practice,  which  was  checked  somewhat  by 
the  popular  disapproval  of  the  action  of  Conkling  and 
Platt  in  resigning  their  seats  because  the  president  re- 
fused to  allow  them  to  disburse  the  patronage  of  New 
York  state,  has  since  fully  recovered  its  former  strength, 
as  is  shown  by  the  recent  rejection  of  the  nominations 
of  Hornblower  and  Peckham. 

The  power  of  the  senate  in  appointments  has  been 
increased  in  other  ways.  One  of  these  is  by  the  increase 
of  the  offices  to  which  appointments  are  made  with  the 
concurrence  of  the  senate.  A  very  considerable  increase 

'Benton,  Thirty  Years'  View,  II,  629;  and  Congr.  Deb.,  2dSess., 
23d  Congr.,  pp.  563,  564,  where  Mr.  Hill  says  :  "Some  persons  for  a 
few  years  past,  have  seemed  to  manifest  a  longing  desire  that  the 
Senate  should  have  a  hand  in  the  management  of  the  executive  de- 
partments beyond  the  power  the  Senate  possesses  as  a  coordinate 
branch  of  the  legislature." 

2  In  case  the  senators  belonged  to  the  party  of  the  president. 

3  Such  a  case  is  noted  in  the  New  York  Times  of  1869  (April  19, 
p.  4),  the  custom,  which  it  says  had  prevailed  to  some  extent  before, 
being  severely  criticised. 

*  Senators  and  committees  of  the  senate  have  acknowledged  that 
such  is  the  case. 


United  States  Senate.  113 

was  made  when,  in  1836,  a  law  was  passed  providing  for 
the  appointment,  with  the  advice  and  consent  of  the 
senate,  of  deputy  postmasters  in  all  the  offices  at  which 
the  commission  allowed  to  the  postmaster  amounted  to 
$1000.00  or  upwards.1  Moreover,  owing  to  the  great 
increase  in  the  number  of  officials  to  be  appointed,  and 
the  consequent  impossibility  of  the  president  knowing  the 
character  of  all,  senators  have  obtained  a  great  influence 
in  the  nomination  to  the  lower  offices  for  which  their 
confirmation  was  not  needed.  In  1861,  the  nomination 
of  all  lower  postmasters  was  unconditionally  turned  over 
to  congressmen,  by  an  official  announcement  that,  there- 
after, such  nominations  would  be  made  on  the  recom- 
mendation of  the  members  of  congress  of  the  different 
districts,  and  that  applications  addressed  to  them  would 
receive  attention  earlier  than  if  sent  to  the  department, 
thus  saving  much  delay  and  trouble.2  In  other  depart- 
ments, also,  the  influence  of  senators  became  paramount. 
In  1869,  a  senator  said  in  debate :  "  It  is  an  every  day 
occurrence  that  applicants  for  office  apply  to  Senators 
and  Representatives  assuring  them  that  their  recommen- 
dation alone  is  lacking  to  secure  them  the  coveted  posi- 
tion ;  and  some  of  the  departments,  I  am  told,  have  ac- 
tually kept  a  debit  and  credit  account  with  members  to 
show  the  number  of  appointments  they  are  entitled  to, 
and  receive."3 

The  disbursement  of  the  patronage  came  to  occupy  a 
third  of  the  working  time  of  senators4  and  led  them  to 
neglect  their  legislative  duties,  while  tempting  them  to 

1  Statutes  at  Large,  vol.  V,  p.  87,  ist  Sess.,  24th  Congr.,  chap.  270, 
sec.  33. 

2  New  York  Semi-weekly  Tribune,  March  15,  1861. 

3  Congr.  Globe,  2dSess.,  4ist  Congr.,  pp.  17,  18.     In  the  2d  Sess., 
42d  Congress,  it  was  said  that  Mr.  Trumbull  in  fifteen  months  made 
103  recommendations.     This  was,  however,  denied  by  Mr.  Trumbull. 
(Congr.  Globe,  p.  1181.) 

4  Statement  of  Garfield  during  his  presidency. 


1 14  The  Origin  and  Development  of  the 

make  the  support  of  an  administration  dependent  upon 
obtaining  nominations  for  their  friends.  This  usurpa- 
tion of  the  appointing  power,  which,  according  to  the 
report  of  the  civil  service  commission  of  1871,  tended 
to  make  the  president  and  his  secretaries  merely  the  ap- 
pointment clerks  of  congress,1  was  one  of  the  evils  which 
the  civil  service  reform  sought  to  check. 

The  movement  for  civil  service  reform  began  in  the 
senate  with  the  introduction  of  a  bill  by  Mr.  Sunnier  in 
1864  ;2  and,  from  that  time,  the  subject  was  occasionally 
brought  up  in  both  houses  of  congress,  and  urged  by  the 
presidents.  The  first  step  was  taken  in  1871,  by  the 
passage  of  a  resolution  authorizing  the  president  to  pre- 
scribe rules  and  regulations  for  the  admission  of  persons 
into  the  civil  service.  It  was  proposed  in  the  senate  as 
an  amendment  to  an  appropriation  bill,  and  passed  with- 
out debate.3  Under  this  act  a  commission  was  appointed 
by  the  president,  which  reported  rules  for  the  regulation 
of  the  civil  service,  that  were  at  once  put  in  operation. 
In  1872  and  1873  congress  made  appropriations  for  car- 
rying these  rules  into  effect ;  but,  in  spite  of  the  success 
of  the  reform  and  the  recommendations  of  the  presi- 
dent, no  appropriations  were  made  after  those  years,  and 
consequently  the  active  work  of  the  commission  was 
suspended,  though  it  was  still  left  in  existence.  Thus 
the  experiment  failed  through  lack  of  the  support  of 
congress. 

The  most  serious  obstacle  to  an  improvement  was 
found  to  be  the  system  by  which  the  appointing  power 
had  been  so  largely  encroached  upon  by  congressmen  ;4 

1  2d  Sess.,  42d  Congr.,  Sen.  Docs.,  No.  10,  pp.  6,  7. 

2  Congr.  Globe,  ist  Sess.,  38th  Congr.,  p.  1985.     The  bill  was  never 
called  up. 

3  Ibid.,  3d  Sess.,  4ist  Congr.,   p.  1997.     This  was  regarded  by  the 
committee  on  the  judiciary  as  only  the  first  step  in  the  reform.     The 
bill  was  so  introduced  only  because  it  was  impossible  otherwise  to 
get  the  attention  of  congress  for  it. 

4  Annual  message  of  President  Hayes,  2d  Sess.,  46th  Congr. 


United  States  Senate.  115 

and  the  part  of  the  system  which  had  been  the  most  un- 
satisfactory was  that  in  which  the  senate  had  the  great- 
est ability  to  thwart  it,  namely,  in  connection  with 
those  nominations  which  required  their  advice  and  con- 
sent.1 The  report  of  the  civil  service  commission  of 
1874  pointed  this  out,  and  called  attention  to  the  fact 
that,  in  this  regard,  an  effective  reform  could  be  brought 
about  only  when  the  senate  and  the  executive  should 
act  upon  the  same  general  theory  of  conferring  office  ; 2 
and  President  Grant,  recognizing  the  impracticability  of 
rules  in  regard  to  such  offices,  unless  sustained  by  the 
action  of  the  senate,  advised  leaving  this  portion  of  the 
subject  to  the  future.3 

President  Hayes  repeatedly,  but  without  effect,  recom- 
mended legislation  on  the  subject.4  The  death  of  Gar- 
field  by  the  hand  of  a  disappointed  office  seeker  brought 
home  so  vividly  the  evils  of  the  then  existing  system 
as  to  induce  congress,  at  the  next  session,  in  accordance 
with  the  recommendation  of  President  Arthur,  to  again 
make  an  appropriation  for  the  support  of  the  civil 
service  commission ;  and  the  following  session  a  bill 
was  passed  establishing  the  commission,  only  five  vot- 
ing against  it  in  the  senate.5 

This  law  affected  only  the  departments  in  Washing- 
ton, and  post  offices,  and  custom  offices  where  over  fifty 
were  employed,  leaving  untouched  all  that  class  of  officers 
whose  confirmation  belonged  to  the  senate,  and  provid- 
ing that  no  one  whose  confirmation  belonged  to  the 
senate  should  be  required  to  be  classified  or  to  pass  an 
examination  unless  by  the  consent  of  the  senate.6  The 

1  ist  Sess.,  43d  Congr.,  Sen.  Docs.,  No.  53,  pp.  88,  89. 

2  Ibid. 

3  Ibid. 

4  Congr.  Record,  26.  Sess.,  45th  Congr.,  p.  4;  2d  Sess.,  46th  Congr., 
p.  3  ;  3d  Sess.,  46th  Congr. 

5  Ibid.,  2d  Sess.,  4yth  Congr.,  p.  661. 

6  Sec.  7  of  the  bill. 


n6  The  Origin  and  Development  of  the 

bill  did  not  touch  foreign  ambassadors  or  officers  of  that 
class  or  lower  postmasters,  and  yet  it  was  declared  that  it 
would  relieve  senators  of  three-fourths  of  their  troubles.1 

To  guard  against  the  exercise  of  an  improper  influence 
upon  the  board  of  examiners  it  was  provided  that  no 
recommendation  of  a  senator  or  representative,  except 
in  regard  to  character,  should  be  received  or  considered 
by  any  one  concerned  in  making  the  examination.2 

The  support  of  the  act  has  not  been  altogether  satis- 
factory, and  the  large  number  of  offices  to  which  it  does 
not  apply  still  leaves  much  room  for  the  interference  of 
the  senate.  The  number  of  offices  to  which  the  law 
applies  has  been  constantly  increased,  however,  so  that, 
while  in  1883  but  eleven  per  cent.3  came  under  its  regu- 
lation, about  twenty-five  per  cent,  do  now,4  and  efforts 
are  constantly  made  to  further  extend  it ;  while  the 
frequent  motions  made  to  repeal  the  law  have  met  with 
no  success.5 

When  it  is  seen  to  what  an  extent  the  senate  has  en- 
croached upon  the  power  in  appointments  undeniably 
granted  to  the  president,  it  is  not  surprising  to  find  that 
it  has  also  shown  itself  ready  to  interpret  the  constitu- 
tion in  its  favor,  whenever  there  is  an  opportunity. 
Such  an  opportunity  is  afforded  by  the  clause  which 
gives  to  the  president  power  "  to  fill  all  Vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing Commissions  which  shall  expire  at  the  End  of  the 
next  Session." 

1  Congr.  Record,  47th  Congr.,  2d  Sess.,  p.  244. 

2  Ibid.,  p.  656. 

3  Ninth  Annual  Report  of  the  Civil  Service  Commission,  p.  10. 

4  World  Almanac,  1895.    This  is  more  than  half  of  the  offices  in  im- 
portance and  salary. 

5  The  amendment  of  the  constitution  so  as  to  give  the  election  of 
certain  officers  to  the  people,  or  to  create  a  house  of  electors  to  con- 
firm  or  elect  officers,  were  alternative  reforms  proposed.     (Congr. 
Record,  ist  Sess.,  47th  Congr.,  pp.  85,  3767.) 


United  States  Senate.  117 

Washington,  on  the  advice  of  Hamilton  and  Jay,1  de- 
cided that  this  did  not  give  him  power  to  appoint  to  an 
original  vacancy,  during  the  recess  of  the  senate.2 
John  Adams3  and  Jefferson,4  however,  acted  under  the  op- 
posite interpretation,  without  being  questioned  by  the 
senate  ;  but,  when  a  similar  course  was  followed  by  Mad- 
ison, a  resolution  protesting  against  it  was  introduced 
and  debated,  though  not  voted  on.5  A  similar  resolution 
of  1825  was  laid  upon  the  table  by  a  majority  of  two, 
after  a  long  debate,  in  the  course  of  which  each  side 
declared  that  the  previous  practice  supported  its  view. 

While  it  was  acknowledged  that  the  president  had  a 
right  at  any  time  to  appoint  special  agents,  without  the 
advice  and  consent  of  the  senate,  there  was  a  difference 
of  opinion  as  to  what  special  agents  were  and  the  duties 
which  could  be  assigned  to  them.  In  the  second  session 
of  the  Twenty-first  Congress,  when  the  appropriation 
for  a  treaty  with  the  Ottoman  Porte,  negotiated  by  spe- 
cial agents,  who  of  course  were  not  nominated  to  the 

1  Hamilton's  Works,  ed.  by  Lodge,  VIII,  p.  407. 

2  The  cases  cited  by  the  opponents  of  this  theory,  in  which  the  prac- 
tice of  Washington  seems  to  have  been  different,  prove  on  examina- 
tion not  to  apply  exactly.     Thus  Mr.  Short,  when  commissioned  by 
Washington  to  adjust  the  boundary  between  Spain  and  the  United 
States,  was  already  resident  minister  in  Madrid.     The  appointments 
to  the  Barbary  States,  without  the  consent  of  the  senate,  could  be 
justified  on  the  ground  that  the  countries  were  in  a  state  of  war,  and 
also  because  the  senate  had  previously  given  its  consent  to  the  nego- 
tiation of  a  treaty  ;  and  Morris  seems  to  have  been  appointed  as  a 
private  agent  rather  than  as  a  public  minister.     (Annals  of  Congr., 
ist  Sess,,  I3th  Congr.,  pp.  751-753,  and  Congr.  Deb.,  vol.  II,  part  i, 
rst  Sess.,  igth  Congr.,  pp.  609-614.) 

¥  As  shown  by  the  appointment,  without  asking  the  advice  of  the 
senate,  of  his  son,  then  minister  to  Berlin,  to  negotiate  a  treaty  with 
Sweden  ;  and  of  Rufus  King  to  negotiate  a  treaty  with  Russia. 

4  Appointment  of  Short.  See  statement  of  Jefferson's  position  in 
his  Works,  vol.  V,  p.  360  ;  for  lists  of  precedents  and  discussion,  An- 
iials  of  Congr.,  ist  Sess.,  I3th  Congr.,  pp.  704,  720,  721,  752  ;  Congr. 
Deb.,  ist  Sess.,  I9th  Congr.,  p.  614. 

3  Exec.  Jour.,  II,  416. 


n8  The  Origin  and  Development  of  the 

senate,  was  agreed  to  ;  it  was  accompanied  by  a  resolu- 
tion stating  that  this  should  not  be  considered  as  "  sanc- 
tioning, or  in  any  way  approving,  the  appointment  of 
these  persons,  by  the  President  alone,  during  the  recess 
of  the  Senate,  and  without  their  advice  and  consent,  as 
commissioners  to  negotiate  a  treaty  with  the  Ottoman 
Porte."1  There  were,  however,  many  who,  like  Madison, 
thought  this  the  wrong  interpretation  of  the  constitu- 
tion.2 In  1863  a  committee  of  the  senate  held  that  the 
power  to  make  such  appointments  was  necessary  from 
the  very  nature  of  the  treaty-making  power  ;3  and  the 
presidents  have  continued  to  employ  special  agents  for 
this  purpose. 

With  regard  to  original  vacancies  in  statutory  offices, 
those  who  denied  the  right  of  the  president  to  fill  them 
in  the  recess  of  the  senate,  did  so  not  only  on  the  ground 
that  a  vacancy  can  not  happen  in  an  office  not  before 
filled,  but  also  because,  in  the  case  of  an  office  created 
by  the  legislature,  the  vacancy  would  necessarily  exist 
prior  to  the  recess,  and,  therefore,  could  not  be  said  to 
happen  in  the  recess.  Some,  while  denying  the  first, 
admitted  the  second,  while  others  interpreted  "  vacancy 
happening  in  the  recess"  as  a  vacancy  happening  to  ex- 
ist in  the  recess. 

The  early  congresses  seem  to  have  held  that  the  pres- 
ident had  not  a  right  to  appoint  to  an  original  statutory 
vacancy,  for,  when  a  law  creating  new  offices  was  passed 
so  near  the  end  of  the  session  as  not  to  give  time  for 
filling  them,  the  president  would  be  specially  authorized 
to  do  so  during  the  recess.4  Moreover,  Mr.  Gore  said,  in 
1814,  that  this  was  the  invariable  practice  ;5  and  in  1826 

1  Congr.  Debates,  2d  Sess.,  2ist  Congr.,  p.  310,  yeas  25,  nays  18. 

2  Madison,  Works,  IV,  369  ;  III,  268. 

3  3d  Sess.,  37th  Congr.,  Sen.  Reports,  No.  80,  p.  8. 

4  Statutes  at  I/arge,  vol.  i,  p.  200,  3d  Sess.,   ist  Congr.,  chap.  15, 
sec.  4. 

5  Annals  of  Congress,  ist  Sess.,  I3th  Congr.,  p.  656. 


United  States  Senate.  119 

Mr,  Tazewell  said  that  it  had  never  been  pretended  by  any 
one,  at  any  time,  that  the  president  might  make  an  ap- 
pointment to  an  original  statutory  vacancy.1  In  1831 
he  said,  further,  that  but  one  president  had  ever  at- 
tempted to  make  such  appointments,  and  that,  in  that 
case,  the  nominations  were  rejected  by  the  senate,  and  a 
report  made  setting  forth  the  constitutional  construction, 
to  which  the  executive  afterwards  assented.2 

This  view  was  upheld  by  Attorney  General  Mason  in 
i845,3  kut  tne  report  of  a  committee  of  the  Thirty- 
seventh  Congress  shows  that  appointments  were,  never- 
theless, occasionally  made  to  original  statutory  vacancies 
in  the  recess  of  the  senate  ;4  and,  in  1868,  Attorney 
General  Evarts  held  that  this,  and  the  case  of  a  vacancy 
happening  in  an  office  during  the  session  of  congress, 
were  exactly  the  same,  and  that  in  both  cases  the  presi- 
dent had  a  right  to  make  an  appointment  during  the  re- 
cess.5 After  that  it  seems  to  have  been  usual  for  the 
president,  during  the  recess,  to  make  appointments  to 
original  vacancies  if  they  happened  to  occur,  though 
congress  still  occasionally  specially  authorized  the  presi- 
dent to  make  such  appointments,6  thus  apparently  not 
recognizing  that  he  had  a  right  to  do  so  in  any  case. 
The  claim  was  also  frequently  disputed  in  the  senate, 
and  in  the  Thirty-seventh,7  Fiftieth,8  and  Fifty-first9 
Congresses,  committees  were  appointed  to  look  into  the 
matter. 

As  the  early  congresses  had  held  that  the  president 

1  Congr.  Debates,  vol.  II,  part  i,  ist  Sess.,  igth  Congr.,  p.  607. 

2  Congr.  Debates,  vol.  VII,  2d  Sess.,  23d  Congr.,  p.  225. 
:!  4  Opinions,  363. 

4  3d  Sess.,  37th  Congr.,  Sen.  Reports,  No.  80,  pp.  9,  u. 

5  12  Opinions,  457. 

6  Cougr.  Globe,  2d  Sess.,  39th  Congr.,  pp.  407-409.      Also,  3d  Sess., 
37th  Congr.,  Sen.  Reports,  No.  80,  p.  9. 

7  3d  Sess.,  Sen.  Reports,  No.  80. 
b  ist  Sess. 

9  ist  Sess. 


I2O  The  Origin  and  Development  of  the 

could  not  appoint  to  an  original  vacancy,  so  it  would 
seem  that  they  also  held  that  he  could  not  fill  vacancies 
happening  during  the  previous  session  ;  for,  on  one  occa- 
sion at  least,  an  act  was  passed  specially  authorizing  the 
president  to  make  such  appointments  during  the  recess,1 
and  Madison  thought  himself  imable  to  make  an  ap- 
pointment to  fill  a  vacancy  which  had  existed  since  the 
last  session.2  With  Monroe  a  different  practice  was  in- 
troduced,3 and  was  followed  by  most  of  the  subsequent 
presidents,4  who  were  supported  in  it  by  the  opinions  of 
the  attorney  generals.5  During  Lincoln's  administra- 
tion, however,  it  would  seem  that  a  different  view  pre- 
vailed, for  in  the  Washington  despatches  of  the  New 
York  Times  for  March  9,  1861,  the  following  appears  : 
"  Mr.  Lincoln  found  about  seventy  vacancies  in  appoint- 
ments under  government.  These  must  be  filled  while 
the  Senate  is  in  session,  or  cannot  be  until  Congress  meets 
again." 

It  has  always  been  the  practice  of  the  president  to  fill 
vacancies  created  during  the  recess  by  removals  though 
a  minority  have  held  that  they  could  not  be  considered 
to  have  happened. 

Another  way  in  which  the  senate,  when  in  opposition 
to  the  president,  has  curtailed  his  power,  is  by  refusing 
to  act  upon  his  nominations  at  the  end  of  his  term. 
This  was  done  at  the  end  of  the  term  of  J.  Q.  Adams, 
when  the  senate  refused  to  act  on  his  nominations  for 
associate  justices  of  the  supreme  court,  on  the  ground 

1  Statutes  at  Large,  vol.  I,  p.  749,  3d  Sess.,  5th  Congr.,  chap.  47. 

2  Madison,  Works,  vol.  Ill,  p.  400. 

3  3d  Sess.,  37th  Congr.,  Sen.  Reports,  No.  80. 

4  Ibid.,  pp.  9-12;  Congr.  Record,  ist  Sess.,  5ist  Congr.,  p.  176. 

5  Digest  of  Opinions  of  Attorney  Generals,  in  House  Misc.  Docs., 
2d  Sess.,  48th  Congr.,  No.  15,  pp.  288-294,  %$  3,  13,  34,  35,  59,  66,  78, 
79,  88,  89;  and  Opinions  of  Attorney  Generals,  vol.  17,  p.  521.    There 
was  one  exception,  Attorney  General  Mason,  in  1845,  holding  the  op- 
posite.    (4  Op.,  363.) 


United  States  Senate.  121 

that  the  people  having  in  an  election  expressed  their  dis- 
approbation of  the  existing"  president,  he  should  make 
only  such  nominations  as  were  actually  necessary  to 
carry  on  the  government.  Under  Tyler  this  was  car- 
ried further,  it  being  informally  agreed,  toward  the  end 
of  his  term,  not  to  act  on  any  of  his  nominations. 

In  the  early  days  of  the  government  the  custom, 
which  has  now  become  fixed,  of  confirming  without 
question  or  reference  all  cabinet  nominations,  was  not 
firmly  established,  though  greater  deference  has  always 
been  paid  to  these  nominations  of  the  president  than  to 
any  others,1  and  they  have,  in  general,  been  accepted 
without  a  dissenting  voice.2  The  fear  of  a  rejection, 
however,  prevented  Jefferson  nominating  Gallatin  as 
secretary  of  the  treasury,  to  the  old  congress,  which  was 
strongly  Federalist  ;3  and  Madison,  being  threatened 
with  a  rejection  of  Monroe  if  he  were  nominated  as 
secretary  of  foreign  affairs,  gave  up  his  wishes  and  nom- 
inated Robert  Smith,  who  was  suggested  to  him  by  cer- 
tain senators  ;4  while  later,  when  Monroe  was  nominated 
as  secretary  of  foreign  affairs,  an  attempt  was  made  to 
find  a  reason  for  his  rejection  by  an  examination  of  his 
accounts.5  Moreover,  three  cabinet  nominations  have 

1  No  vote  is  recorded  against  any  of  the  cabinet  nominations  of 
Washington,  Jefferson,  Van  Buren,  Taylor,  Fillmore,  or  Pierce,  and 
votes  are  recorded  against  only  one  each  of  the  cabinet  nominations 
of  J.  Adams,  J.  Q.  Adams,  Monroe  and  Buchanan,  while  votes  are  re- 
corded against  four  of  Madison's  nominations,  and  against  two  of 
both  Lincoln's  and  Johnson's. 

3  In  the  2d  Sess.,  39th  Congr.  (Congr.  Globe,  p.  384),  Mr.  Fessen- 
den  said  :  "It  has  always  been  considered,  since  the  foundation  of 
the  government,  as  a  matter  of  course,  as  a  general  rule — there  may 
have  been  one  or  two  exceptions,  and  I  think  there  have  been — that 
the  President  might  select  such  persons  as  he  pleased  to  be  member? 
of  his  cabinet — the  general  idea  of  the  Senate  has  been,  whether  they 
liked  the  men  or  not,  to  confirm  them  without  difficulty." 

3  Stevens,  Gallatin,  p.  185. 

4  Adams,  Life  of  Gallatin,  p.  390. 

5  Exec.  Jour.,  II,  p.  188. 


122  The  Origin  and  Development  of  the 

actually  been  rejected,  each  one,  however,  under  unusual 
circumstances.1  Now,  nominations  for  the  cabinet,  like 
those  of  senators  for  office,  are  confirmed  at  once,  and 
without  reference. 

The  omission  in  the  constitution  of  a  provision  re- 
garding removals,  placed  that  subject  among  those  which 
must  be  decided  by  inference,  thus  giving  an  opportu- 
nity for  opposing  views.  The  question  came  up  for  de- 
cision in  the  very  first  congress  assembled  under  the  new 
constitution,  being  caused  by  a  clause  in  the  bill  for  the 
organization  of  the  departments,  which  provided  that 
the  heads  of  the  departments  should  be  appointed  "  by 
the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  and  be  removable  by  the  President."2 

Starting  from  this  the  discussion  extended  to  the  sub- 
ject of  removals  in  general.  Four  different  opinions 
were  advanced.  There  were  a  considerable  number  who 
held  that  no  removal  could  be  made  but  by  impeach- 
ment, and  much  of  the  discussion  in  the  house  went  to 
the  upholding  or  refuting  of  this ;  which,  however  jus- 
tifiable as  an  interpretation  of  the  constitution,  should, 
it  would  seem,  have  been  ruled  out  from  the  first  on  ac- 
count of  its  impracticability,  even  with  the  small  num- 
ber of  offices  then  needed.  A  second  party  held  that,  since 
the  constitution  was  silent  regarding  removals,  the  legis- 
lature might  give  the  power  to  whom  it  would ;  while 
a  third,  regarding  the  power  of  removal  as  incident  to 
that  of  appointment,  held,  therefore,  that  it  was  vested 
in  the  president  and  senate.3  Still  another  party  main- 
tained that,  inasmuch  as  the  power  of  removal  was  an 
executive  power,  it  belonged  to  the  president ;  and  this 

1  Roger  B.  Taney  (Exec.  Jour.,  IV,  p.  427,  yeas  18  nays  28)  ;  James 
M.  Porter  (Exec.  Jour.,  VI,  p,  227,  yeas  3,  nays  38)  ;  and  David  Hen- 
shaw2(Exec.  Jour.,  VI,  pp.  210,  211,  yeas  8,  nays  34). 

2  Annals  of  Congress,  ist  Sess.,  1st  Congr.,  p.  385. 

3  This  is  the  opinion  held  by  the  supreme  court,  13  Ott.  Rep.,  227, 
237  ;  13  Peters  Rep.,  259,  261,  Ex parte  Hennen. 


United  States  Senate.  123 

was  the  view  which  finally  prevailed,  being  adopted  in 
the  house  by  a  considerable  majority.1 

In  the  senate  the  subject  was  debated  four  days,  the 
discussion  being  mainly  as  to  whether  the  senate  was  or 
was  not  associated  with  the  president  in  removals.  Mr. 
Ellsworth,  whose  opinion  as  a  member  of  the  conven- 
tion carries  weight,  says  :  "  There  is  an  explicit  grant  of 
power  to  the  President  which  contains  the  power  of  re- 
moval. The  executive  power  is  granted,  not  the  execu- 
tive powers  hereinafter  enumerated  and  explained.  The 
President  not  the  Senate,  appoints,  they  only  consent 
and  advise.  The  Senate  is  not  an  executive  council ; 
has  no  executive  power."2  So  equally  divided  was  the 
senate  on  this  subject,  that  it  was  only  by  the  casting 
vote  of  the  vice  president  that  the  clause,  as  adopted  by 
the  house,  was  retained.3 

Under  the  first  six  presidents,  with  the  exception  of 
Jefferson,  there  was  little  or  no  abuse  of  the  power  of 
removal,  and  the  subject  seems  to  have  attracted  no  at- 
tention until  the  action  of  Jackson  brought  it  forcibly 
before  the  people. 

The  bill  passed  May  fifteenth,  1820,  limiting  the  ten- 
ure of  office  of  certain  officials  to  four  years,  by  which 
the  senate  was  enabled,  through  its  power  of  confirma- 
tion, practically  to  remove  all  such  officers  at  the  end 
of  four  years,  was  ostensibly  introduced  only  for  the 
purpose  of  obtaining  greater  security  for  the  upright 
performance  of  their  duties  by  the  officers  concerned. 
Mr.  Adams,  however,  said  that  the  object  of  the  law, 
which  was  drawn  by  Crawford,  was  to  gain  support  for 

1  The  clause  as  first  adopted  in  the  house  implied  a  legislative  grant 
of  the  power,  and,  attention  being  called  to  this,  the  language  was 
changed.     (Annals  of  Congress,   ist  Sess.,  ist  Congr.,  pp.  399,  600- 
604.) 

2  J.  Adams,  Works,  III,  pp.  408,  412. 

3  Half  of  the  members  of  the  senate  at  that  time  had  been  mem- 
bers of  the  convention. 


124  The  Origin  and  Development  of  the 

Crawford  for  the  presidency.1  Introduced  in  the  senate, 
the  bill  passed  its  various  stages  in  both  houses  without 
debate,  and,  in  the  senate,  was  ordered  to  a  third  read- 
ing by  a  vote  of  29  to  zj..2  The  tendency  of  this  law  did 
not,  however,  escape  the  attention  of  the  statesmen  of 
the  time.  Madison  questioned  its  constitutionality,3  and 
Jefferson,  foreseeing  clearly  its  effect,  declared  it  to 
be  more  baneful  than  the  unsuccessful  attempt,  at 
the  beginning  of  the  government,  to  make  all  officers 
irremovable,  except  with  the  consent  of  the  senate.4 

The  first  two  presidents  after  the  passage  of  the  act, 
despite  the  urgency  of  senators,  did  not  take  advantage 
of  the  opportunities  thus  offered  them,  and  renominated, 
at  the  expiration  of  office,  everyone  against  whom  there 
was  no  complaint.'5  Under  their  successors,  however, 
the  expiration  of  the  four  years'  term  came  to  be  con- 
sidered as  the  vacation  of  the  office,6  so  that  J.  Q.  Adams 
wrote  in  1828:  "  The  result  of  the  act  has  been  to 
increase  the  power  of  patronage  exercised  by  the  Presi- 
dent, and  still  more  that  of  the  Senate  and  of  every  in- 
dividual Senator."7  So  far  reaching  were  the  effects  of 
the  law  that  Calhoun  said  in  1846  that  "it  had  done 
more  toward  making  a  revolution  in  the  United  States 
than  almost  any  other  law."3 

A  bill,, introduced  in  1826,  for  the  repeal  of  this  law 
and  the  substitution  of  one  requiring  a  report  at  the  end 
of  every  four  years  from  all  officers  having  charge  of  the 
collection  or  disbursement  of  the  revenue,  and  providing 
for  the  removal  of  defaulters,  was  not  voted  on  ;9  but  in 

1 J.  Q.  Adams,  Works,  VII,  424. 

2  Annals  of  Congress,  ist  Sess.,  i6th  Corjgr.,  p.  674. 
</  » Works,  III,  200. 
-.      "Jefferson,  Works,  VII,  190. 

5J.  Q.  Adams,  Works,  VI,  520,  521. 

6  Benton,  Thirty  Years'  View,  I,  82. 
/  7J.  Q.  Adams,  Works,  VII,  425. 

8  Congr.  Globe,  ist  Sess.,  29th  Congr.,  p.  819. 

9 Ibid.,  vol.  II,  part  ii,  ist  Sess.,  i9th  Congr.,  App.  p.  138. 


United  States  Senate.  125 

1835  the  same  bill  was  introduced  in  the  senate  and  passed 
by  a  vote  of  31  to  i6,!  but  was  not  acted  upon 
in  the  house.  Again  in  1846  the  senate  repealed 
so  much  of  the  act  as  limited  the  tenure  of  office  of  pay- 
masters to  four  years,2  but  the  house  disagreed  to  it,  and 
the  law  still  remains  in  full  force,  though  an  attempt 
has  recently  been  made,  in  connection  with  the  civil 
service  reform,  to  repeal  this  and  other  laws  limiting 
the  tenure  of  office. 

Another  means  by  which  it  has  been  attempted  to 
gain  indirectly  the  power  of  removal,  which  the  first 
senate,  by  the  casting  vote  of  the  vice  president,  declared 
that  it  did  not  possess,  was  by  calling  upon  the  president 
to  state  his  reasons  for  a  removal,  when  acting  upon  the 
nomination  to  fill  the  vacancy  so  occasioned.  Prior  to 
1826  there  was  no  attempt  to  make  this  a  general  rule, 
but  in  individual  cases  unsuccessful  resolutions  of  this 
character  had  been  introduced.3 

The  bill  proposed  by  the  committee  appointed  in  1826 
to  consider  the  expediency  of  reducing  the  executive 
patronage,  required  the  president,  in  making  a  nomi- 
nation to  fill  a  vacancy  caused  by  a  removal,  to 
give  his  reasons  for  such  removal,  and  was  in- 
tended, according  to  Mr.  Benton,  "  to  operate  as  a 
restraint  upon  removals  without  cause  and  to  make 
legal  and  general  what  the  Senate  itself  and  the 
members  of  the  committees  individually  had  con- 
stantly refused  to  do  in  isolated  cases.  It  was,"  said  he, 
u  the  recognition  of  a  principle  essential  to  the  proper 
exercise  of  the  appointing  power,  and  entirely  consonant 
to  Mr.  Jefferson's  idea  of  removals ;  but  never  admitted 

1  Congr.  Globe/ vol.  XI,  part  i,  2d  Sess.,  230!  Congr.,  p.  576. 
8  Ibid.,  isf  Sess.,  29th  Congr.,  pp.  833,  834. 

3  Benton,  Thirty  Years'  View,  I,  82.      Congr.  Debates,  vol.  VII,  part 
i,  p.  370.     Exec.  Jour.,  II,  504. 


126  The  Origin  and  Development  of  the 

by  any  administration,  nor  enforced  by  the  Senate 
against  anyone — always  waiting  the  legal  enactment."1 

This  bill  never  coining  before  the  senate  for  action, 
individual  motions  to  inquire  into  the  cause  of  certain 
removals  continued  to  be  made,2  though  for  some  time 
unsuccessfully.  The  majority  held  not  only  that  the 
president  had  a  right  to  remove  all  federal  officers,  but 
that  the  senate  had  no  right  to  inquire  into  the  cause  of 
the  removal,  its3  duty  being  confined  to  deciding  regard- 
ing the  fitness  of  the  person  nominated  to  fill  the  va- 
cancy created,  and  the  only  remedy,  in  case  of  an  abuse 
of  power  by  the  president,  being  impeachment.  The 
senate  in  the  past  had  not  acted  upon  such  a  narrow  in- 
terpretation but,  on  several  occasions,  had  asserted  its 
right  to  look  behind  the  fitness  of  candidates,  and  upheld 
it  by  the  rejection  of  the  candidates,  as  in  the  case  of 
Monroe's  military  nominations  in  1822,  and  the  cases  of 
rejection  of  ministers  because  a  mission,  was  not  deemed 
expedient  at  the  time  the  nomination  was  made. 

Among  the  minority,  at  this  time,  were  found  various 
shades  of  opinion.  While  the  most  extreme  held  that 
the  consent  of  the  senate  was  as  necessary  for  removals 
as  for  appointments,  there  were  others  who  held  that  the 
president  had  a  right  to  suspend  an  officer,  but  that  if 
the  person  nominated  as  a  successor  was  rejected  then 
the  former  incumbent  still  remained  in  office  ;4  while 
still  others  claimed  for  the  senate  only  the  right  to  re- 
strain the  president  in  the  abuse  of  the  power  of  removal.5 

In  1835  a  resolution  was  finally  adopted  in  the  senate, 
but  not  considered  in  the  house,  requiring  the  president 
to  give  his  reasons  for  removals,  in  making  nominations 
to  fill  the  vacancies  so  occasioned.  At  the  same  time, 

1  Benton,  Thirty  Years'  View,  I,  82. 

2  Exec.  Jour.,  IV,  70,  76. 

3  Congr.  Deb.,  ist  Sess.,  2ist  Congr.,  p.  457. 
4J.  Q.  Adams,  Works,  VIII,  p.  189. 

5  Congr.  Debates,  ist  Sess.,  2ist  Congr.,  p.  385. 


United  States  Senate.  127 

as  has  been  said,  the  repeal  of  the  tenure  of  office  bill 
of  1820  was  agreed  upon  by  the  senate.1  During  the 
same  session  of  congress  the  senate  had  asserted  its 
right,  in  an  individual  instance,  to  call  upon  the  presi- 
dent for  the  reasons  of  a  removal,  stating,  in  the  pream- 
ble of  the  resolution  asking  them,  that  they  were  re- 
quested because  they  might  contain  information  neces- 
sary in  the  action  of  the  senate  on  the  nomination  of  a 
successor.2  President  Jackson  refused  to  comply  with 
the  request,  which  he  characterized  as  an  u  encroachment 
on  the  rights  of  the  executive/' 3  and  the  senate  upheld 
its  view  by  the  rejection  of  the  nomination  of  a  succes- 
sor4 and  a  second  rejection  on  the  renomination  of  the 
same  person.5 

This  seems  to  Ve  the  only  case  prior  to  1867  in 
which  such  a  resolution  was  adopted.  Similar  ones 
during  the  administrations  of  Tyler6  and  Taylor7  failed, 
many,  however,  voting  against  them  who  would  have 
been  in  favor  of  a  general  rule  on  the  subject,  or  of  de- 
priving the  president  altogether  of  the  power. 

In  1844  a  committee  on  retrenchment  reported  against 
the  power  of  removal  in  the  president,  and  advised  the 
passage  of  a  law  specifying  "the  disqualifications  or 
reasons  which  will  be  considered  in  law  sufficient  to  au- 
thorize removals."8  A  little  later  a  motion  to  require 
the  advice  and  consent  of  the  senate  in  reducing  the 
army  at  the  end  of  the  war  failed,  though  several 
voted  against  it,  not  because  they  disapproved  of  the 

1  Congr.  Debates,  vol.  XI,  part  i,  2d  Sess.,  23d  Congr.,  p.  576. 

2  Exec.  Jour.,  IV,  pp.  465,  466. 

3  Ibid.y  p.  468.     He  held  that  "  the  President,  in  cases  of  this  na- 
ture, possesses  the  exclusive  power  of  removal  frani  office." 

4  Ibid.,  p.  481. 

'•>  Ibid.,  pp.  519,  528,  529. 

6  Exec.  Jour.,  V,  p.  401. 

7  Congr.  Globe,  ist  Sess.,  3ist  Congr.,  pp.  74,  160. 

8  ist  Sess.,  28th  Congr.,  Sen.  Docs.,  No.  399. 


128  The  Origin  and  Development  of  the 

principle,  but  because  they  thought  it  unwise  to  decide 
so  momentous  a  question  without  thorough  debate.1 

From  this  time  till  the  close  of  the  civil  war,  the 
slavery  question,  and  then  the  conduct  of  the  war, 
nearly  banished  all  other  questions.  The  system  of 
partisan  removals  seems  to  have  been  accepted  as  a 
necessary  evil,  in  the  case  of  the  senate,  partly  perhaps, 
because  of  the  increasing  share  in  the  patronage  which 
it  had  obtained. 

The  quarrel  of  congress  with  President  Johnson  caused 
it  to  seek  every  means  of  limiting  his  power  and  led  to 
the  passage  of  the  tenure  of  office  act  of  1867.  During 
the  first  session  of  the  Thirty-ninth  Congress  both 
houses  had  been  vehemently  importuned  to  take  from 
the  president  the  power  of  removal.2  The  action 
of  the  president  in  renominating,  during  the  recess,  per- 
sons whom  the  senate  in  the  preceding  session  had  re- 
jected— thus  practically  doing  away  with  the  senate's 
power  of  confirmation — as  well  as  his  removals  from 
office  and  the  general  opposition  to  him,  ensured  the 
passage  of  the  act  at  the  next  session.3 

The  bill,  as  first  reported  by  the  joint  select  commit- 
tee on  retrenchment  and  as  adopted  in  the  senate,  pro- 
vided that  all  officers  appointed  by  and  with  the  advice 
and  consent  of  the  senate,  with  the  exception  of  the 
cabinet  officers,  should  hold  office  until  a  successor  had 
been  duly  appointed ;  except  that,  in  the  recess  of  the 
senate,  the  president  might  suspend  an  officer  who  had 

1  Congr.  Globe,  ist  Sess.,  2gth  Congr.,  p.  959. 

2  Ibid.,  2d  Sess.,  39th  Congr.,  p.  1517,  statement  of  Mr.  Howe. 

3  Mr.  Edmunds,  the  chairman  of  the  committee,  however,  in  report- 
ing the  bill,  said  that  he  did  so  in  no  partisan  spirit,  and  that  he 
thought  the  bill  one  that  would  be  good  for  any  administration  and 
all  times ;  and  it  was  frequently  asserted  in  the  debates  that  the  action 
desired  was  not  on  account  of  partisan  spirit  or  hatred  of  the  presi- 
dent. 


United  States  Senate.  129 

become  "  legally  disqualified  or  incapable"  to  perform 
his  duties  ;  but  this  fact  must  be  communicated  to  the 
senate  for  approval  or  disapproval  within  thirty  days 
after  its  reassembling,  and,  if  the  senate  did  not  con- 
cur in  the  suspension,  the  officer  was  to  be  restored. 
Furthermore,  it  guarded  against  the  continued  recom- 
missioning  of  an  officer  by  the  president,  without  asking 
the  consent  of  the  senate,  by  providing  that  a  vacancy, 
lawfully  happening  during  the  recess,  might  be  filled  by 
the  president,  the  person  appointed  holding  office  till 
the  end  of  the  next  session  ;  when,  if  no  appointment  had 
been  made  with  the  advice  and  consent  of  the  senate,  the 
office  should  remain  vacant  until  such  an  appointment 
could  be  made.1 

In  the  debate,  the  subject  was  considered  in  all  its 
bearings.  The  old  question  of  the  right  of  the  president 
to  make  any  removals  was  discussed,  and  the  precedents 
for  it  enumerated ;  but  the  point  which  excited  most 
discussion  was  the  exception  of  the  heads  of  the 'depart- 
ments. The  amendment  proposed  for  striking  out  the 
clause  in  which  this  exception  was  made  was  twice 
voted  down  in  the  senate,  the  second  time  by  a  vote  of 
27  to  i3.2  In  the  house,  a  similar  motion  was  first  lost 
by  two  votes,  but  on  reconsideration  was  adopted  75  to 
66.3  The  senate  refused  to  accede  to  this  amendment, 
but  a  report  of  a  conference  committee  was  finally  ac- 
cepted, which  adopted  the  house  amendment  with  an 
amendment  providing  that  the  members  of  the  cabinet 
should  hold  their  offices  respectively  for  and  during  the 
term  of  the  president  by  whom  they  were  appointed, 
and  for  one  month  thereafter,  subject  to  removal  by  and 
with  the  advice  and  consent  of  the  senate.*  '  The  bill 

1  Congr.  Globe,  2d  Sess.,  39th  Congr.,  p.  382. 
tlbid.,  p.  548. 

3  Ibid.,  pp.  944,  969. 

4  Ibid.t  p.  1514. 


130  The  Origin  and  Development  of  the 

thus  amended  was  adopted  in  the  senate  by  a  vote  of  22 
to  10,  and,  being  vetoed  by  President  Johnson  on  the 
ground  of  its  unconstitutionality,1  was  passed  over  the 
veto  without  debate.2 

Considering  the  opinions  expressed  in  the  senate,  dur- 
ing the  debate  on  the  bill,  against  compelling  the  presi- 
dent to  retain  unwelcome  cabinet  officers,  and  the  hold- 
ing of  such  views  by  a  majority  of  the  senate,  as  shown 
by  their  votes  ;  their  action  in  refusing  to  concur  in  the 
removal  of  Mr.  Stanton  from  the  office  of  secretary  of 
war  can  only  be  accounted  for  by  the  personal  quarrel 
with  the  president,  and,  therefore,  too  much  importance 
should  not  be  attached  to  this  interpretation  of  the  law 
by  them.  Their  action  on  this  subject,  as  well  as  the 
later  repeal  of  the  law  and  the  remarks  then  made,  dis- 
credit their  earlier  statements  that,  in  passing  the  law, 
they  were  influenced  only  by  general  views  regarding 
its  expediency  and  constitutionality. 

The  denial  by  Mr.  Stanton  of  the  right  of  the  presi- 
dent to  suspend  him  from  office  under  the  constitution 
and  laws  of  the  United  States,  without  the  consent  of 
the  senate,  is  also  remarkable,  inasmuch  as  when  the 
law  was  before  the  cabinet  he  was  loudest  in  declaring 
it  to  be  unconstitutional ;  and  because  it  seemed  to  be 
taken  for  granted  that  the  law  would  not  apply  to  mem- 
bers of  the  cabinet  appointed  by  Mr.  Lincoln.3 

Mr.  Stanton  was  suspended  from  office  during  the  re- 
cess of  the  senate,  and  when,  on  the  assembling  of  con- 
gress, President  Johnson  notified  the  senate  of  his  action, 
it  refused,  by  a  vote  of  31  to  8,  to  concur  in  the  suspen- 
sion.4 About  a  month  thereafter  the  president  removed 
Mr.  Stanton,  stating  in  his  message  to  the  senate  an- 

1  Congr.  Globe,  2d  Sess.,  39th  Congr.,  p.  1964. 

*fdzd.,  p.  1966. 

3  Bxec.  Jour.,  vol.  16,  p.  99. 

4 Ibid.,  p.  129. 


United  States  Senate.  131 

nouncing  it,  that  he  had  done  so  in  the  exercise  of  the 
power  and  authority  vested  in  him  as  president.1  The 
senate  at  once  passed  a  resolution  declaring  the  act  to 
be  unconstitutional,2  and  the  president,  in  his  reply,  up- 
held it  on  the  ground  that  Mr.  Stanton  was  appointed 
by  his  predecessor.  After  the  trial  of  the  president  on 
impeachment,  which  followed  in  consequence  of  this 
act,  and  his  acquittal,  President  Johnson  nominated  a 
successor  to  Mr.  Stanton  whom  the  senate  confirmed, 
stating,  however,  that  they  considered  the  former  incum- 
bent illegally  removed,  but  as  he  had  relinquished  his 
place  they  agreed  to  the  appointment  of  a  successor.3 

In  the  second  session  of  the  Fortieth  Congress,  while 
the  Stanton  case  was  before  the  senate,  a  bill  was 
reported  as  an  addition  to  the  tenure  of  office  act,  dis- 
cussed, and  passed  in  the  senate,  which  further  limited 
the  exectitive  power  by  forbidding  the  appointment  by 
the  president  .of  most  of  the  general  and  special  agents 
before  allowed,  and  by  requiring  the  confirmation  of  the 
senate  in  the  appointment  of  officers  who  before  had 
been  appointed  by  the  president  or  his  secretaries.  The 
avowed  purpose  of  this  act  was  to  decrease  the  ex- 
penses of  the  government.  The  bill  passed  the  senate 
by  a  large  majority.4  In  the  house  it  was  referred  to  a 
committee,  and  not  called  up. 

At  the  third  session  of  the  Fortieth  Congress  a  bill 
for  the  repeal  of  the  tenure  of  office  act  was  hurried 
through  the  house,  under  the  previous  question,  without 
debate,  and  passed  by  a  vote  of  121  to  47.5  In  the  sen- 
ate a  substitute  was  reported  by  the  committee  which, 
instead  of  repealing  the  act,  provided  for  its  amendment 
so  as  to  except  cabinet  officers  and  not  to  require  the 

1  Exec.  Jour.,  vol.  16,  p.  170. 

-Ibid.,  p.  172. 

3 Ibid.,  pp.  236,  238,  239. 

4  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  p.  1037. 

3  Ibid.,  3d  Sess.,  4oth  Congr.,  p.  283. 


132  The  Origin  and  Development  of  the 

president  to  give  his  reasons  for  suspension.  This  was 
discussed  on  two  different  days  and  the  senate  then 
refused  to  take  it  up. 

At  the  next  congress  the  repeal  was  again  passed  in 
the  house  without  debate  and  sent  to  the  senate.  Mean- 
while a  bill  to  repeal  the  act  had  been  introduced  in  the 
senate  and  indefinitely  postponed,  and  one  to  amend  the 
bill  had  been  referred  to  a  committee.  On  receipt  of 
the  house  bill  this  was  taken  up.  An  attempt  to  pass 
it  in  the  senate,  without  reference  or  discussion,  failed, 
and  it  was  amended  so  as  to  provide  for  the  repeal  of 
the  first  and  second  sections  of  the  act  and  the  substitu- 
tion of  a  section  which  required  the  consent  of  the 
senate  for  the  removal,  during  the  session  of  congress, 
of  an  officer  appointed  by  and  with  its  consent ;  giving 
to  the  president,  however,  the  right  to  suspend  an  officer 
during  vacation.  Such  a  suspension  had  to  be  reported 
to  the  senate  within  thirty  days  after  its  assembling,  and 
a  person  nominated  to  the  office  thus  left  vacant.  If 
the  senate  refused  to  consent  to  the  nomination  so 
made,  and  also  to  the  suspension,  then  the  suspended 
officer  was  entitled  to  resume  his  office.1 

According  to  the  interpretation  of  this  given  in  the 
house  during  the  discussion  of  the  report,  its  essential 
difference  from  the  original  law  lay  in  the  fact  that,  un- 
der the  law  of  1867,  the  reasons  for  which  the  officer  was 
suspended  must  be  given,  while  according  to  the  law 
proposed  by  the  senate  this  was  not  necessary.  The 
house  refused  to  agree  to  the  senate  amendment,  and 
the  bill  went  to  a  committee  of  conference  where  it  was 
further  amended  by  striking  out  the  portion  regarding 
the  result  of  the  refusal  of  the  senate  to  agree  to  a 
suspension,  and  inserting  :  "  Then,  and  not  otherwise,  the 
President  shall  nominate  another  person  as  soon  as 
practicable  to  said  session  of  the  Senate."  The  effect 

1  Congr.  Globe,  ist  Sess.,  4ist  Congr.,  p.  246. 


United  States  Senate.  133 

of  this  amendment,  according  to  those  who  explained  it 
in  the  house,  was  "  to  leave  to  the  President,  under  the 
limitation  of  law,  all  the  power  that  was  ever  claimed 
for  the  President  under  the  Constitution  of  the  United 
States,  the  suspension  under  the  bill  amounting  practi- 
cally to  a  removal."  With  this  understanding  the  bill 
was  agreed  to  in  the  house.  In  the  house  it  had  also 
been  held  that,  if  at  the  end  of  the  session  no  person 
had  been  confirmed  to  fill  a  vacancy  created  by  a  suspen- 
sion, the  office  would  remain  vacant ;  but  in  the  senate 
it  was  maintained  that  the  removed  officer  would  again 
take  his  place.  The  interpretation  of  the  senate  was 
upheld  by  the  attorney  general,  and  was  the  one  which 
prevailed.  Practically,  however,  it  made  no  difference, 
for  the  president  could  again  suspend  the  officer  re- 
moved upon  his  reinstatement  in  his  office. 

President  Grant  was  not  satisfied  with  this,  and  in  his 
first  annual  message  he  recommended  the  repeal  of  the 
law,  declaring  it  to  be  "  inconsistent  with  a  faithful  and 
efficient  administration  of  the  government."  Twice 
the  repeal  was  passed  in  the  house,  and  not  acted  on  in 
the  senate.1  In  the  third  session  of  the  Forty-sixth% 
Congress,  President  Hayes,  while  speaking  of  civil  ser- 
vice reform,  urged  its  repeal  ;2  and  in  1877  Garfield,  in 
advocating  the  repeal,  said :  "  The  President  can  re- 
move no  officer  without  the  consent  of  the  Senate,  not 
often  given  unless  the  appointment  of  the  successor  is 
agreeable  to  the  Senator  in  whose  state  the  appointee 
resides."3 

In  the  first  session  of  both  the  Forty-eighth  and  Forty- 
ninth  Congresses,  a  bill  for  the  repeal  of  the  law  was 
again  introduced  in  the  house  ;  and,  in  the  first  session 
of  the  Forty-ninth  Congress,  there  was  a  long  discussion 

1  ist  and  2(1  Sessions  of  the  426.  Congress. 

2  Congr.  Record,  p.  3. 

3  Taken  from  Eaton,  Secret  Sessions,  p.  41. 


134  The  Origin  and  Development  of  the 

of  the  subject  in  the  senate,  brought  on  by  the  refusal 
of  the  attorney  general,  under  the  direction  of  President 
Cleveland,  to  comply  with  a  resolution  of  the  senate 
calling  for  "  copies  of  all  papers  and  documents  that 
have  been  filed  in  the  Department  of  Justice,  since  the 
first  day  of  January,  1885,  ^n  relation  to  the  manage- 
ment and  conduct  of  the  office  of  the  district  attorney 
of  the  United  States  of  the  Southern  District  of  Ala- 
bama ;"!  the  senate  having  under  consideration  the  nom- 
ination of  a  person  to  take  the  place  of  the  one  suspended. 
In  the  majority  report  of  the  committee  of  the  judi- 
ciary, to  whom  the  message  was  referred,  it  was  stated 
that,  since  the  passage  of  the  act  of  March  second, 
1867,  it  had  always  been  the  practice  of  the  committee 
of  the  judiciary,  whenever  a  nomination  was  made  pro- 
posing the  removal  from  office  of  one  person  and  the 
appointment  of  another,  to  address  a  note  to  the  head  of 
the  department  having  such  matter  in  charge,  usually 
the  attorney  general ;  asking  that  all  papers  and  informa- 
tion in  the  possession  of  the  department,  touching  the 
conduct  and  character  of  the  officer  proposed  to  be  re- 
Amoved,  and  of  the  person  to  be  appointed,  be  sent  to  the 
committee  for  its  information.  This  practice  had  been 
followed  throughout  all  administrations  with  the  unani- 
mous approval  of  all  the  members  of  the  committees, 
although  the  composition  of  the  committees  had  been 
sometimes  of  one  political  character  and  sometimes  of 
another.2  When,  in  the  present  instance,  there  was  de- 
lay in  sending  the  information,  a  resolution  passed  the 
senate,  without  division,  calling  for  such  information. 
The  senate  declared  the  action  of  the  attorney  general 
to  be  "  in  violation  of  his  official  duty  and  subversive  of 
the  fundamental  principles  of  the  government  and  of  a 
good  administration  thereof,"  and  that  consequently  it 

1  Congr.  Record,  ist  Sess.,  49th  Congr.,  p.  1585. 

2  Ibid. 


United  States  Senate.  135 

was  their  duty  to  refuse  the  confirmation  of  a  successor 
to  the  officer  removed.1 

The  papers  were  refused  on  the  ground  that  they  were 
private,  but  at  the  same  time  the  president  said  :  "  I  am 
also  led  unequivocally  to  dispute  the  right  of  the  Sen- 
ate, by  the  aid  of  any  documents  whatever  or  in  any 
way,  except  through  the  judicial  process  of  trial  by  im- 
peachment, to  review  or  revise  the  acts  of  the  Executive, 
in  the  suspension,  during  the  recess  of  the  Senate,  of 
the  Federal  Officials."2 

It  had  frequently  been  asserted  that,  since  its  amend- 
ment, the  tenure  of  office  act  had  had  no  practical 
effect.  This  would  certainly  be  the  case  if  Cleveland's 
interpretation  were  to  prevail,  and,  at  the  next  session,  a 
resolution  for  its  repeal  was  introduced  in  the  senate, 
and  passed  by  a  considerable  majority. 

III.      TREATIES, 

Though  treaties  were  regarded  as  part  of  the  execu- 
tive duties  of  the  senate  and,  therefore,  even  after  1794, 
still  considered  in  secret,  there  was  no  general  rule  for- 
bidding disclosures  concerning  them  until  December  22, 
1800.  It  is  evident  that,  previously,  they  were  not  con- 
sidered secret,  since,  when  it  was  deemed  expedient  to 
keep  secret  the  Jay  treaty,  a  special  order  was  passed 
placing  it  under  the  injunction  of  secrecy.3  This  rule, 
which  provided  "  That  all  treaties  which  may  hereafter 
be  laid  before  the  Senate  shall  also  be  kept  secret 
until  the  Senate  shall,  by  their  resolution,  take  off 
the  injunction  of  secrecy,1'4  was  interpreted  as  extend- 
ing the  injunction  of  secrecy  to  all  the  proceedings 
of  the  senate,  including  the  fact  that  a  treaty  had  been 

1  Congr.  Record,  istSess.,  49th  Congr.,  pp.  1587,  2810,  2814. 

s/Wrf.,  p.  1903. 

3  Exec.  Jour.,  I,  178, 

4 Ibid.,  p.  361. 


136  The  Origin  and  Development  of  the 

submitted  to  the  senate,  and  its  provisions.1  In  1868 
the  rule  was  made  more  definite  by  providing  that  "  all 
remarks  and  proceedings  thereon,  shall  be  kept  secret," 
and  in  1877  votes  were  included  in  the  enumeration.2 

The  efficacy  of  these  rules  regarding  treaties  has  been 
no  greater  than  similar  ones  regarding  nominations. 
The  very  first  time  an  injunction  of  secrecy  was  imposed  it 
was  violated,  and,  in  1846,  it  was  said  in  the  senate  that 
secret  sessions  on  treaties  amounted  to  nothing,  since, 
whenever  treaties  were  of  sufficient  importance  to  attract 
attention,  they  became  known  just  as  well  as  if  consid- 
ered in  public.3  This  was  one  of  the  reasons  urged  in 
the  frequent  proposals  for  the  abolition  of  secret  ses- 
sions, in  consideration  of  all  or  certain  classes  of  treaties. 
In  1870  it  was  agreed  that,  thereafter,  Indian  treaties 
should  be  considered  in  open  session,  except  when  trans- 
mitted by  the  executive  to  the  senate  for  its  confidential 
consideration.4 

The  first  treaty  to  be  considered  in  open  session, 
though  proposals  for  such  a  course  had  often  been  made 
before  in  special  cases,  was  the  fisheries  treaty  with 
England.  This  innovation  was  due  to  the  fact  that  the 
treaty  was  made  a  campaign  issue,  and  neither  party 
dared  to  risk  the  inference  which  might  be  drawn  from 
their  refusal  to  discuss  it  in  public. 

The  expectations  of  Washington,  and  probably  of  the 
first  senate  also,5  regarding  the  manner  of  procedure  and 
the  relation  of  the  president  and  senate  in  the  formation 
and  consideration  of  treaties,  have  not  been  realized  ;  it 
being  apparent,  even  during  the  First  Congress,  that  they 
would  not  be  fully  carried  out. 

'Exec.  Jour.,  IV,  123,  Report  of  Committee  of  1830. 

2  Congr.  Record,  2d  Sess.,  4oth  Congr.,  p.  1630,  Rule  39;  and  2d  Sess., 
44th  Congr.,  p.  1877,  Rule  67. 

3  Congr.  Globe,  ist  Sess.,  29tli  Congr.,  p.  988. 
4 Ibid.,  2d  Sess.,  4ist  Congr.,  p.  1099. 

5  It  seems  to  have  acquiesced  in  his  view. 


United  States  Senate.  137 

Washington,  when  waited  upon  to  ascertain  his  opin- 
ions regarding  the  mode  of  communication  which  should 
be  observed  between  the  president  and  senate  on  nomi- 
nations and  treaties,  said  :  "  In  all  matters  respecting 
treaties  oral  communications  seem  indispensably  neces- 
sary ;  because  in  these  a  variety  of  matters  are  con- 
tained, all  of  which  not  only  require  consideration,  but  f 
some  of  them  may  undergo  discussion,  to  do  which  by 
wrritten  communication  would  be  tedious  without  being 
satisfactory."1  Recognizing  that  different  circumstances 
might  require  different  means  of  communication  and  that 
the  opinion  of  both  the  president  and  the  senate  regard- 
ing the  best  mode  might  change,  he  suggested  that  the 
rules  of  the  senate  should  be  accommodated  to  either 
oral  or  written  communications,  and  this  was  accord- 
ingly done  ;2  the  senate  thereby  indicating  their  concur- 
rence with  the  ideas  of  Washington  and  their  expectation 
of  holding  personal  communication  with  him. 

It  seems  to  have  been  expected  that  treaties  would  be 
gone  over  clause  by  clause,  and  modelled,  by  the  presi- 
dent and  senate  together,3  this  being  the  course  pursued 
in  the  formation  of  the  first  treaty.  On  August  21,  1789, 
Washington  sent  a  message  to  the  senate  informing 
them  that,  on  the  next  day,  he  would  meet  them  in  the 
senate  chamber  to  discuss  concerning  the  terms  of  an 
Indian  treaty.  As  this  is  the  only  instance  in  which 
such  a  course  was  pursued,  and  as  Washington  evidently 
expected  that  the  usual  mode  of  communication  on 
treaties  would  be  oral,  it  seems  worth  while  to  give  a 
portion  of  the  interview,  an  account  of  which  is  found 
in  Maclay's  Journal,  that  the  reason  for  the  discontinua- 
tion of  the  practice  may  thus,  if  possible,  be  discovered. 

Washington,  Works,  vol.  XI,  p.  417. 
2  The  rule  still  remains  the  same. 
3J.  Adams,  Works,  III,  409,  statement  of  Mr.  Butler  in  a  senate 

debate. 


138  The  Origin  and  Development  of  the 

At  the  appointed  time  Washington  appeared  in  the 
senate,  accompanied  by  General  Knox ;  and,  having 
stated  the  reason  for  his  coming  and  that  he  had  brought 
General  Knox  because  he  was  well  acquainted  with  the 
affair,  a  paper  which  he  had  brought  with  him,  contain- 
ing an  account  of  the  relations  with  the  Indians  and 
having  annexed  to  it  seven  questions,  was  read,  after 
which  the  vice  president  read  the  first  question  and  put 
it  to  vote.  As  no  one  moved,  Mr.  Maclay  tells  us  that, 
after  a  pause,  and  just  as  the  vice  president  was  about 
to  put  the  question,  he  rose,  and,  speaking  of  the  im- 
portance of  the  treaty  and  the  lack  of  information,  asked 
for  the  reading  of  the  treaties  and  other  documents 
mentioned  in  the  paper.  At  this,  he  says  :  "  I  cast  an 
eye  at  the  President  of  the  United  States.  I  saw  he 
wore  an  aspect  of  stern  displeasure."  There  seemed 
evident  reluctance  to  proceed.  The  first  and  second 
articles  were  postponed  and  then  a  commitment  was 
proposed.  Objections  were  made  to  this.  It  was  said  : 
"  We  were  acting  as  a  council.  No  council  ever  com- 
mitted anything."  Mr.  Maclay  spoke  in  favor  of  a 
commitment,  and  "  as  I  sat  down,"  he  writes,  u  the  Pres- 
ident of  the  United  States  started  up  in  a  violent  fret. 
'  This  defeats  every  purpose  of  my  coming  here,'  were 
the  first  words  that  he  said.  He  then  went  on  that  he 
had  brought  his  Secretary  of  War  with  him  to  give 
every  necessary  information ;  that  the  Secretary  knew 
all  about  the  business,  and  yet  he  was  delayed  and  could 
not  go  on  with  the  matter.  He  cooled,  however,  by  de- 
grees. Said  he  had  no  objection  to  putting  off  this 
matter  until  Monday,  but  declared  he  did  not  understand 
the  commitment." 

The  president  withdrew  soon  after,  Mr.  Maclay  says, 
"  with  a  discontented  air ; "  and  he  writes  further,  "  I 
can  not  now  be  mistaken.  The  President  wishes  to 
tread  on  the  necks  of  the  Senate.  Commitment  will 


United  States  Senate.  139 

bring  the  matter  to  discussion,  at  least  in  the  commit- 
tee, where  he  is  not  present.  He  wishes  us  to  see  with 
the  eyes  and  hear  with  the  ears  of  his  Secretary  only." 
When  Washington  attended  on  the  next  day  the  differ- 
ent points  were  taken  up,  debated,  and  decided  without 
further  misunderstanding.1 

That  Washington  wished  to  "  tread  on  the  necks  of 
the  Senate,"  as  Mr.  Maclay  suggested,  but  found  himself 
unable  to  do  so  and  therefore  discontinued  the  practice 
of  oral  communications,  does  not  accord  with  his  char- 
acter or  treatment  of  the  senate.  It  is  more  probable 
that  the  practice  was  discontinued  because  Washington 
saw  that  it  restrained  the  freedom  of  debate  ;  and,  per- 
haps, as  he  suggested  in  the  case  of  nominations,  he 
found  it  unpleasant  to  have  his  propositions  discussed 
and  criticised  in  his  presence. 

Though  giving  up  oral  communications  with  the  sen- 
ate regarding  treaties,  he  still  continued,  in  most  cases, 
to  take  the  advice  of  the  senate  previous  to  the  negotia- 
tion of  a  treaty.2  His  failure  to  do  so  in  the  negotia- 
tion of  the  treaty  with  Great  Britain  was  held  by  some 
to  be  a  violation  of  the  constitution,  but  by  others  to  be 
perfectly  proper.3 

On  Indian  treaties  there  was  a  question  as  to  whether 

'Journal  of  Maclay,  pp.  128-133. 

2  In  the  negotiations  with  Spain,  he  asked  the  senate  if  they  would 
consent  to  the  extension  of  the  powers  of  the  minister  lately  appoint- 
ed to  that  court,  and  would  ratify  a  treaty  made  in  conformity  to 
those  instructions   (Exec.  Jour.,  I,    106).     In  the  negotiations  with 
Algiers,  he  asked  the  senate  if  they  would  agree  to  a  treaty  of  a  cer- 
tain  form   (Exec.  Jour.,  I,  122)  ;    and  before  taking  steps  relative  to 
the  settling  of  the  boundary  between  Nova  Scotia  and  Maine,  the 
senate  was  consulted.     In  regard  to  Indian  treaties,  it  had  been  the 
unanimous  opinion  of  his  cabinet  that  a  previous  consultation  of  the 
senate  was  not  necessary.     Washington,  nevertheless,  frequently  con- 
sulted   the  .senate    regarding  such  treaties  (Exec.   Jour.,   I,  21,  36, 
55,  60,  88,  98). 

3  Williams,   Statesman's   Manual,    I,    p.  88 ;   Life    and   Letters  of 
Cabot,  pp.  241,  243. 


140  The  Origin  and  Development  of  the 

the  final  ratification  of  the  government  was  necessary, 
or  if  the  signature  of  the  treaty  by  the  negotiator  should 
be  considered  binding,  as  had  been  the  previous  prac- 
tice. Washington  favored  the  first  plan.  A  committee 
of  the  senate,  to  whom  the  question  was  referred  on  the 
receipt  of  the  first  Indian  treaty,  reported  in  favor  of 
the  old  practice ;  but  the  report  was  set  aside  by  the 
senate  and  the  treaty  submitted,  ratified  in  due  form.1 

Adams,  who  disapproved  of  the  executive  powers 
entrusted  to  the  senate,  would  naturally  be  inclined  to 
interpret  the  constitution  so  as  to  limit  them  as  much 
as  possible ;  and,  during  his  presidency,  the  advice  of 
the  senate,  previous  to  the  negotiation  of  a  treaty,  was 
never  requested.2 

The  practice  of  Adams  has  been  followed  since  with 
but  few  exceptions.  The  first  of  these  is  that  of  Jack- 
son, who  consulted  the  senate  previous  to  the  negotiation 
of  a  treaty  with  the  Choctaws.  In  the  message  asking 
the  senate  for  its  advice  he  said  :  "  I  am  fully  aware  that 
in  thus  resorting  to  the  earlier  practice  of  the  Senate  in 
the  discharge  of  this  portion  of  my  duties,  I  am  depart- 
ing from  a  long  and  for  many  years  an  unbroken  usage 
in  similar  cases.  But  being  satisfied  that  this  resort  is 
consistent  with  the  provision  of  the  Constitution  ;  that 
it  is  strongly  recommended  in  this  instance  by  consider- 
ations of  expediency ;  and  that  the  reasons  which  have 
led  to  the  observance  of  a  different  practice,  though  very 
cogent  in  negotiations  with  foreign  nations,  do  not  apply 
with  equal  force  to  those  made  with  the  Indian  tribes,  I 

1  Exec.  Jour.,  I,  27,  28. 

2  Soon  after  entering  office  Adams  asked  Wolcott  if  certain  instruc- 
tions to  a  foreign  minister  should  be  laid  before  the  senate  for  their 
advice  and  consent  before   being  sent  to  Europe,    and  Wolcott  re- 
plied that  he  did  not  think  it  wise  to  consult  the  senate  on  treaties, 
previous  to  their  negotiation,  as  it  did  not  possess  sufficient  informa- 
tion to  enable  it  to  act  wisely,  and  because  such  a  course  would  render 
secrecy  impossible.      (Gibbs,    Administration    of   Washington   and 
Adams.,  I,  516,  517.) 


United  States  Senate.  141 

flatter  myself  that  it  will  not  meet  with  the  disapproba- 
tion of  the  Senate."1 

The  report  of  the  committee  of  the  senate  to  whom 
the  message  and  treaty  was  referred  contained  only 
vague  recommendations ;  and  even  these  were  not 
adopted  by  the  senate,  the  committee,  in  accordance 
with  its  request,  being  discharged,2  and  no  further  action 
being  taken  on  the  subject,  the  senate  thus  showing  it- 
self less  eager  to  extend  its  influence  than  the  president 
seemed  to  expect.  Yet  Madison,  writing  about  this 
time,  gives  the  claim  of  a  right  to  be  consulted,  previous 
to  the  negotiation  of  a  treaty,  as  among  the  innovating 
doctrines  of  the  senate,3  and  Benton  says  that  the  view 
was  held  by  many  senators.4 

The  previous  consultation  of  the  senate  by  Polk  in 
negotiating  the  treaty  with  Great  Britain  for  the  settle- 
.ment  of  the  Oregon  controversy,  was  undoubtedly  due 
to  a  desire  to  throw  the  responsibility  for  the  treaty  on 
the  senate.  He  declared  in  his  message,  however,  that 
he  approved  of  the  practice  on  momentous  questions, 
because  it  would  secure  harmony  in  the  actions  of  the 
executive  department ;  and,  in  this  case,  was  especially 
advisable  since  peace  or  war  might  depend  on  the  decis- 
ion of  the  question.5 

The  same  question  was  also  the  occasion  of  the  next 
consultation  of  the  senate  previous  to  the  negotiation  of 
a  treaty.  The  treaty  of  1846  was  not  decisive  on  cer- 
tain points  concerning  the  boundary  between  Oregon 
and  the  English  possessions  ;  and,  after  several  unsuc- 
cessful attempts  at  settlement,  the  president  submitted 
the  question  to  the  senate,  and  asked  if  they  would 
agree  to  a  treaty  of  arbitration  with  certain  specific  fea- 

1  Exec.  Jour.,  IV,  98. 

2  Ibid.,  112,  119. 

3  Works,  IV,  370. 

<  Thirty  Years'  View,  II,  675. 
*  Ibid.,  pp.  673,  675. 


142  The  Origin  and  Development  of  the 

tures.1  The  senate  adjcnirning  before  it  had  taken  ac- 
tion on  the  subject,  and  Lincoln  coming  to  the  presi- 
dency, the  senate  sent  to  him  a  copy  of  the  message  of 
his  predecessor,  and  Lincoln,  in  acknowledging  this, 
says  :  u  I  find  no  reason  to  disapprove  of  the  course  of 
my  predecessor  in  this  important  matter,  but,  on  the  con- 
trary, I  not  only  shall  receive  the  advice  of  the  Senate 
thereon  cheerfully,  but  I  respectfully  ask  the  Senate  for 
their  advice.-"  2  This  the  senate  accordingly  gave.3 

Lincoln  again  consulted  the  senate  in  December,  1861, 
regarding  a  convention  with  Mexico,  submitting  to  that 
body  for  its  advice  a  copy  of  a  draft  for  a  convention 
proposed  to  the  government  of  Mexico  by  Mr.  Corwin, 
the  minister  of  the  United  States.4  Later  he  communi- 
cated a  letter  of  the  minister,  asking  for  instructions, 
and  requested  the  advice  of  the  senate  on  the  pending 
treaty.5  The  senate  adopted  a  resolution  expressing  its 
disapproval  of  the  treaty,  and  making  general  sugges- 
tions regarding  another,  while  stating  that  the  lack  of 
information  made  it  impossible  to  go  into  details.6  Presi- 
dent Johnson  in  1869  submitted  a  protocol  with  Great 
Britain  to  the  senate  for  its  advice  as  to  the  expedi- 
ency of  concluding  a  convention  based  thereon,7  and 
President  Grant  asked  the  advice  of  the  senate  regard- 
ing the  indemnities  in  the  Alabama  affair. 

When,  as  has  happened  on  a  few  occasions,  the  presi- 
dent has  asked  for  an  appropriation  of  money  for  the 

1  Exec.  Jour.,  XI,  279,  282. 

2  Ibid.,  pp.  307,  308. 

3  Ibid,,  p.  314. 

4  Ibid.,  XII,  p.  24. 

5  Ibid.,  p.  102. 

6  The  communication  of  the  opinion  of  the  senate  by  the  president 
to  Mr.  Corwin  failed  to  reach  him,  and  the  proposed  treaty  was, 
therefore,  negotiated.     When  received,  Lincoln  submitted  it  with  an 
explanation   of  the   circumstances  to  the  senate,   by  which  it  was 
tabled.     (Exec.  Jour.,  XII,  pp.  370,  401.) 

7  Exec.  Jour.,  XVI,  pp.  441,  477. 


United  States  Senate,  143 

purposes  of  the  negotiation  of  a  treaty,  the  senate  has 
thus  had  an  opportunity,  incidentally,  to  say  whether  it 
wished  such  a  treaty  negotiated.1  Similarly  the  senate 
in  confirming  a  minister  for  the  purpose  of  negotiating 
a  treaty  gives  its  consent  to  that  negotiation.  In  most 
cases,  however,  even  this  opportunity  for  the  expression 
of  an  opinion,  prior  to  the  negotiation  of  a  treaty,  is  not 
given  to  the  senate ;  for  most  of  our  treaties  have  been 
negotiated  by  the  ministers  resident  in  the  country  with 
which  the  treaty  was  to  be  made,  or  by  secret  agents  of 
the  president  who  were  private  citizens  or  officers  of  the 
government  commissioned  for  that  purpose.  In  1888  the 
number  of  persons  who  had  been  so  appointed  by  the 
president  was  four  hundred  thirty-eight  while  but  thirty- 
two  had  been  appointed  with  the  advice  of  the  senate  ; 
and,  between  1827  an(^  1880,  none  were  so  appointed, 
although  many  of  the  appointments  during  this  time 
were  made  when  the  senate  was  in  session.2 

Objections  have,  on  several  occasions,  been  made  to 
the  employment  of  private  agents  for  the  negotiation  of 
treaties,  and  considerable  discussion  has  taken  place  ;  but 
on  one  occasion  only  has  the  senate  adopted  a  resolution 
expressive  of  its  disapproval  of  such  a  course.  This 
was  in  i83i,3  and,  when  three  years  later  a  similar  reso- 
lution was  introduced,  it  was  at  once  tabled  ;4  while  in 
1838,  when  Van  Buren  was  about  to  commission  our 
charge  d'affaires  to  Peru  to  stop  on  his  way  at  Ecuador 
to  negotiate  a  treaty,  and  communicated  this  fact  to  the 
senate  in  order  to  give  it  an  opportunity,  if  it  wished, 

'Such  an  appropriation  was  made  in  1803  (Annals  of  Congr. ,  2d 
Sess.,  yth  Congr.,  pp.  91-96,  102,  103,  106-255),  and  in  1806  (Exec. 
Jour.,  II,  36-43),  and  was  asked  for  in  1846  (Exec.  Jour.,  VII,  p.  133)' 

2  Report  of  Committee  on  Foreign  Affairs,  ist  Sess.,  soth  Congr., 
Sen.  Misc.  Docs.,  vol.  2,  No.  109,  pp.  103,  104. 

3  Congr.  Debates,  vol.  VII,  2d  Sess.,  2ist  Congr.,  p.  310,  yeas  25, 
nays  18. 

4  Exec.  Jour.,  IV,  445. 


144  The  Origin  and  Development  of  the 

for  the  expression  of  an  opinion  on  the  exercise  of  such 
a  power  by  the  executive,1  no  action  was  taken  beyond 
the  reference  of  the  message  to  a  committee ;  and  a 
treaty,  presumably  negotiated  in  the  manner  suggested, 
was  afterward  adopted. 

A  resolution  of  Mr.  Chandler  of  July  20,  i888,2 
denying  the  right  of  the  president  to  appoint  private 
citizens  as  special  agents,  called  forth  the  report  which 
showed  how  frequently  this  had  been  done. 

Though  the  senate,  through  its  power  of  confirmation, 
does  not  often  have  an  opportunity  to  say  whether  a 
specified  treaty  shall  be  negotiated,  and  only  in  a  few 
instances  has  been  requested  to  give  its  advice  previous 
to  or  during  a  negotiation,  it  nevertheless  frequently, 
especially  of  late  years,  exercises  a  considerable  influence 
in  the  formation  of  treaties.  Ordinarily  it  may  obtain 
any  information  regarding  negotiations,  during  their 
progress,  by  the  adoption  of  a  resolution  calling  for  such 
information,3  which  the  president,  knowing  that  he 
must  finally  obtain  the  consent  of  the  senate  to  what- 
ever is  done,  will  be  inclined  to  communicate,  if  it  can 
be  done  without  prejudice  to  existing  negotiations. 
Then  the  senate  has,  occasionally,  though  it  has  been 
objected  to  by  some  as  unconstitutional,  adopted  resolu- 
tions requesting  the  president  to  pursue  a  certain  policy. 
These,  however,  are  of  rare  occurrence,  and  had  the 
influence  of  the  senate  depended  upon  them  alone,  it 
would  have  been  slight ;  but  the  president,  in  view  of 
the  fact  that  all  his  negotiations  must  eventually  be 
passed  upon  by  the  senate,  finds  it  necessary  to  defer  to 
their  wishes  to  a  certain  extent ;  consequently,  there  is  a 
great  deal  of  informal  communication  between  the  pres- 
ident or  secretary  of  foreign  affairs  and  senators  or  com- 

1  Exec.  Jour.,  V,  p.  119. 

2Congr.  Record,  ist  Sess.,  5cth  Congr.,  pp.  6568. 

3  Ibid.y  ist  Sess.,  49th  Congr.,  pp,  2216-2220,  for  list  of  such  calls. 


United  States  Senate.  145 

mittees  of  the  senate,  the  influence  of  the  chairman 
of  the  committee  on  foreign  affairs  being  the  greatest. 

The  power  of  the  senate  in  this  regard  seems  to  have 
increased  considerably  of  late.  The  Nation  in  1872 
says :  "  The  conduct  of  the  Senate  during  the  past  ten 
years  on  questions  of  foreign  policy  has  been  such  that 
it  will  hereafter  be  very  difficult,  if  not  increasingly  dif- 
ficult, for  the  President  to  enter  on  any  negotiation  with 
any  foreign  power  on  his  own  motion,  or  from  his  own 
sense  of  fitness  or  expediency.  The  relations  between 
him  and  the  Senate  have,  as  every -body  knows,  of  late 
undergone  serious  and  important,  though  not  always 
perceptible  modifications."1  And  Mr.  Morgan,  when 
the  tendency  of  the  senate  to  control  all  diplomatic 
affairs  was  shown  in  its  action  on  the  fisheries  treaty, 
said  :  "  The  Senate  has  become  of  late  years  extremely 
aggressive  in  its  endeavor  to  control  by  resolutions, 
and  through  the  action  of  the  committees,  the  whole 
diplomatic  relations."2 

When  a  treaty  has  been  negotiated,  the  president  has 
assumed  the  right  to  reject  it  without  submission  to  the 
senate,  if  he  deemed  it  unwise  ;3  and,  in  one  case,  that 
of  the  extradition  treaty  with  the  Netherlands  of  May 
29,  1856,  the  president,  after  submitting  it  to  the  sen- 
ate, requested  its  return,  and  the  senate  complied  with 
the  request.  The  treaty  was  re-submitted  a  few  months 
later  and  ratified  with  amendments.  The  president  in 
laying  a  treaty  before  the  senate  has  also  suggested 
amendments  ; 4  and,  in  one  case,  that  of  the  treaty  of  1863 
with  Peru,  the  treaty  was  formally  amended  before  sub- 
mission to  the  senate.5 

1  Nation,  May  30,  1872,  p.  348. 

2Cougr.  Record,  ist  Sess.,  soth  Congr.,  p.  8672. 

3  Such  was  Jefferson's  course  of  procedure  in  regard  to  the  treaty  of 
December  31,  1806,  with  Great  Britain,  and  such  that  of  Polk  in  regard 
to  the  treaty  with  Mexico  of  March  15,  1854. 

4  Exec.  Jour.,  VIII,  290,  IX,  266,  XI,  256. 
-Ibid.,  XIII,  122. 


146  The  Origin  and  Development  of  the 

When  a  treaty  has  been  agreed  to  by  the  senate,  on 
condition  that  ratifications  should  be  made  within  a  cer- 
tain time>  and  this  has  not  been  done,  it  has  been  cus- 
tomary to  submit  the  treaty  to  the  senate  for  a  second 
ratification.1 

With  one  exception  a  law  or  resolution  of  congress 
has  been  considered  necessary  for  the  abrogation  of 
treaties,  it  being  held  that,  since  treaties  are  by  the  con- 
stitution declared  to  be  "  the  supreme  law  of  the  land," 
they  could  be  abrogated  by  no  power  less  than  that 
which  abrogates  existing  laws,  which  is  the  congress.2 

The  first  instance  of  the  abrogation  of  a  treaty  on  our 
part,  was  that  of  the  French  treaty  in  1798.  The  joint 
resolution  declaring  the  treaty  to  be  void  was  introduced 
in  the  senate,  and  no  notice  appears  in  the  recorded 
proceedings  of  any  other  possible  mode  of  action  being 
suggested. 

When  later  the  termination  of  the  convention  with 
Great  Britain  regarding  the  joint  occupancy  of  Oregon 
was  desired,,  the  president  recommended  its  repeal  by 
law,  and  congress  complied  with  the  recommendation. 
There  were  some,  at  that  time,  who  held  that  the  same 
power  should  be  required  for  the  abrogation  of  a  treaty 
as  for  its  conclusion,  and,  in  the  second  session  of  the 
Thirty-third  Congress,  the  senate  in  secret  session  unani- 
mously adopted  a  resolution  authorizing  the  president, 
at  his  discretion,  to  give  notice  to  Denmark  of  the  termi- 
nation of  the  treaty  with  that  power  ;3  it  being  held  that 
a  law  of  congress  was  not  necessary  as  the  treaty  con- 

1 J.  Q.  Adams,  Works,  V,  285  ;  Exec.  Jour.,  IV,  7,  9,  147,  151  ;  V, 
244,  275  ;  VIII,  385. 

2  This  was  the  view  taken  by  Story  (Commentaries,  sec.  1838),  and 
upheld  by  Judge  Iredell  in  a  judicial  decision.      ( Ware  vs.  Hylton 
et  al.  ;  i  Curtis,  205. ) 

3  Exec.  Jour.,  IX,  431. 


United  States  Senate.  147 

tained  provision  for  its  termination.1  The  notice,  in 
accordance  with  the  senate  resolution,  was  given  and,  at 
the  next  session,  the  senate  refused  to  consider  a  resolu- 
tion, introduced  by  Mr.  Sumner  in  open  session,  direct- 
ing the  committee  of  foreign  affairs  to  consider  if  an  act 
of  congress  was  not  necessary  for  the  abrogation  of  a 
treaty.2  The  resolution  of  Mr.  Sumner  had  been  caused 
by  a  proposal  made  in  executive  session  and  favorably 
reported  by  a  committee,  for  the  abrogation  by  resolu- 
tion of  the  senate  of  certain  articles  of  a  treaty  with 
Great  Britain  ;3  and,  though  the  resolution  was  never 
voted  upon,  it  was  feared  at  the  time  that  there  was  an 
intention  of  reviving  it. 

The  action  in  the  case  of  the  Denmark  treaty  has  not 
been  made  a  precedent,  and,  though  there  are  still  some 
who  hold  that  a  treaty  may  be  abrogated  by  the  presi- 
dent and  senate,  the  practice  has  conformed  to  the  earlier 
mode,  the  joint  resolution  often  being  introduced  in  the 
senate,  as  in  the  abrogation  in  1883  of  the  fisheries  arti- 
cle of  the  treaty  with  Great  Britian.4 

That  a  law  of  congress  in  contradiction  of  treaty  stip- 
ulations repealed  them  has  always  been  held.5 

'•The  treaty  with  Great  Britain  regarding  the  joint  occupancy  of 
Oregon  contained  provision  for  its  termination,  but  it  was  not  held, 
on  that  account,  that  a  law  was  unnecessary  for  its  abrogation  ;  nor 
was  this  held  in  regard  to  the  treaty  of  1854  with  Great  Britain  which 
was  abrogated  by  law  in  1865. 

2  Sumner,  Works,  IV,  99. 

3  Exec.  Jour.,  IX,  330,  334. 

*  Congr.  Record,  2d  Sess.,  47th  Congr.,  p.  3056. 

5  This  is  shown  by  the  law  of  1816  for  regulating  the  tonnage,  from 
which  it  is  seen  that  it  was  considered  necessary,  if  the  provisions  of 
treaties  were  not  to  be  abrogated  by  the  law,  to  state  this  to  be  the 
case  (Statutes  at  Large,  vol.  Ill,  p.  314,  istSess.,  I4th  Congr.,  chap.  107, 
sec.  6).  A  law  of  1817  (Ibid.,  vol.  Ill,  p.  344,  2dSess.,  I4th  Congr.,  chap. 
3,  sec.  i),  and  one  of  1862  (Ibid.,  vol.  XII,  p.  558,  2d  Sess.,  37th 
Congr.,  chap.  163,  sec.  15)  shows  the  same  ;  and  this  view  has  been 
upheld  by  judicial  decisions.  (Taylor  vs.  Morton,  C.  C.  R.,  2  Curtis, 
454  ;  and  Cherokee  Tobacco  Case,  n  Wall,  621.  "A  law  of  Congress 
repugnant  to  a  treaty  to  that  extent  abrogates  it.") 


148  The  Origin  and  Development  of  the 

Although  in  the  clauses  of  the  constitution  referring 
to  treaties,  nothing  is  said  of  any  share  of  the  house  in 
them,  such  part  has  been  claimed  by  the  house.  That 
such  a  claim  should  have  been  made  is  due  to  the  fact 
that  many  treaties  contain  stipulations  regarding  sub- 
jects, which,  by  the  constitution,  are  specifically  con- 
fided to  congress,  or  may  be  inferred  to  be  granted  to 
that  body. 

Kspecially  in  Indian  treaties  has  the  house  claimed, 
and  exercised,  a  considerable  influence,  since  nearly  all 
such  treaties  involve  the  payment  of  money  or  the  dis- 
posal of  the  public  lands,  in  the  latter  of  which  the 
house  considers  that  it  has  an  equal  right  of  deciding, 
and  in  the  former  a  preponderating. 

Washington  recognized  this  claim  of  the  house  by 
consulting  and  receiving  instructions  from  it  before  pro- 
ceeding with  negotiations.1  The  usual  practice  was  for 
congress  to  make  appropriations  for  Indian  treaties  prior 
to  their  negotiation.  Sometimes  the  appropriations 
were  made  in  general  terms,  sometimes  specific  sums 
were  appropriated  for  negotiations  with  specified  tribes, 
and  sometimes  laws  were  passed  authorizing  the  president 
to  enter  into  negotiations  for  treaties  with  certain  tribes, 
no  special  appropriation  being  made  for  the  purpose.2 
Occasionally,  however,  treaties  involving  the  payment 
of  money  were  made  without  a  previous  appropriation, 
congress  afterwards  making  it. 

In  1838  a  resolution  was  submitted  in  the  senate  for- 
bidding the  president  to  have  negotiated,  without  a  pre- 
vious appropriation  by  congress,  any  treaty  with  the  In- 
dians for  the  purchase  or  exchange  of  land  ;3  and  bills 
and  joint  resolutions,  denying  the  right  of  the  senate 
and  the  executive,  by  treaty  with  the  Indians,  to  dispose 

1  Annals  of  Congress,  ist  Sess.,  ist  Congr.,  pp.  60,  710,  711. 

2  See  Statutes  at  Large,  under  Indian  treaties.     Also  Congr.  Globe, 
ist  Sess.,  4oth  Congr.,  p.  374,  and  ist  Sess.,  4ist  Cougr.,  p.  167. 

3  Exec.  Jour.,  V,  p.  138. 


United  States  Senate.  149 

of  the  public  domain,  except  by  direct  conveyance  to 
the  United  States,  were  repeatedly  introduced  in  the 
house,  but  pigeon-holed  in  the  senate.1 

An  increase  in  the  practice  of  negotiating  Indian 
treaties  without  any  previous  law  was  acquiesced  in  by 
the  house  for  some  years,  and  the  Indian  policy  practi- 
cally left  to  the  senate  ;2  but  in  1867  a  law  was  passed, 
on  a  bill  making  appropriations  for  deficiencies  in  the 
contingent  expenses  of  the  senate,  which  provided  that : 
"  All  laws  allowing  the  President,  the  Secretary  of  the 
Interior,  or  the  Commissioner  of  Indian  affairs  to  enter 
into  treaties  with  any  Indian  tribes  are  hereby  repealed, 
and  no  expenses  shall  hereafter  be  incurred  in  negotiat- 
ing a  treaty  with  any  Indian  tribe  until  an  appropria- 
tion authorizing  such  an  expense  shall  be  first  made  by 
law." 3  The  exigencies  of  an  Indian  war  made  it  neces- 
sary to  repeal  this  law  soon  after,4  but  in  1871  it  was 
finally  agreed  that  no  treaty  should  thereafter  be  made 
with  an  Indian  tribe.5 

The  infringement  of  treaties  regulating  commerce, 
acquiring  or  ceding  territory,  or  providing  for  the  pay- 
ment of  money,  upon  the  powers  granted  to  congress, 
has  led  the  house  to  claim  a  discretionary  power  in  car- 
rying into  effect  treaties  containing  regulations  on  any 
of  these  subjects  ;  and  it  has  been  able  to  enforce  its 
claim  through  the  necessity  for  legislative  action  to 
carry  such  treaties  into  effect.  This  claim  was  first 
made  in  connection  with  the  Jay  treaty,  which  excited 
much  partisan  feeling,  and  was  ratified  by  the  bare  two- 
thirds  vote  required.  The  treaty  provided  for  the  pay- 

1  Congr.  Globe,  ist  Sess.,  4istCongr.,  p.  57,  statement  of  Mr.  Julian. 

2  Ibid.,  pp.  147,  166  ;  and  ist  Sess.,  4oth  Congr.,  p.  374,  statement  of 
Mr.  Sherman. 

3  Statutes  at  Large,  vol.  XV,  p.  9,  ist  Sess.,  4otli  Congr.,  chap.  13, 
sec.  6. 

4  Ibid.,  p.  18,  chap.  34. 

5  Ibid.,  vol.  XVI,  p.  566,  3d  Sess.,  4 ist  Congr.,  chap.  120. 


150  The  Origin  and  Development  of  the 

merit  of  a  small  sum  of  money,  and  its  promulgation 
before  its  submission  to  the  house  naturally  irritated 
those  who  claimed  for  the  house  a  discretionary  power 
in  carrying  such  treaties  into  effect.  The  opposition 
was  begun  by  the  introduction  of  a  resolution  calling 
upon  the  president  for  papers  relating  to  the  treaty,  with 
the  avowed  object  of  discussing  the  constitutional  ques- 
tion. This  called  forth  a  debate  of  nearly  a  month,  in 
the  course  of  which  the  different  views  were  set  forth.1 
The  resolution  was  finally  adopted  by  a  large  majority.2 
Washington,  with  the  approval  of  his  cabinet,  refused 
to  comply  with  the  request,  stating  among  his  reasons 
for  doing  so  that  the  house  had  no  right  to  deliberate  on 
a  treaty,  it  having  become  obligatory  when  ratified  by 
the  president  and  senate.3  The  appropriation  was  finally 
voted  by  the  house,  a  resolution  being  previously  adopted, 
which,  while  disclaiming  for  the  house  any  agency  in 
making  treaties,  declared  that,  "when  a  treaty  stipu- 
lates regulations  on  any  of  the  subjects  submitted  by  the 
Constitution  to  the  power  of  Congress,  it  must  depend 
for  its  execution,  as  to  such  stipulations,  on  a  law  or 
laws  to  be  passed  by  Congress." 4 

Jefferson,  the  leader  of  the  Republicans,  when  he  be- 
came president,  recognized  the  claims  of  the  house. 
Speaking  of  the  instruments  for  the  transfer  of  Louisi- 
ana he  said  :  "  When  these  shall  have  received  the  con- 
stitutional sanction  of  the  Senate,  they  will,  without 
delay,  be  communicated  to  the  House  of  Representatives 
for  the  exercise  of  their  functions,  as  to  those  conditions 
which  are  within  the  powers  vested  by  the  Constitution 
in  Congress."5  He  also  on  one  occasion  requested  con- 
gress to  make  a  secret  appropriation  for  the  negotiation 

1  Annals  of  Congress,  ist  Sess.,  4th  Congr.,  pp.  426  ff. 

2  Ibid.,  ist  Sess.,  4th  Congr.,  p.  759,  yeas  62,  nays  37. 

3  Ibid.,  ist  Sess.,  4th  Congr.,  pp.  760,  761. 

4  Ibid.,  ist  Sess.,  4th  Congr.,  pp.  771,  782,  783. 
5 Ibid.,  ist  Sess.,  8th  Congr.,  p.  12. 


United  States  Senate.  151 

of  a  treaty  ;T  and,  at  another  time,  when,  without  his 
formal  request,2  such  an  appropriation  had  been  made 
by  congress,3  he  stated  that  he  considered  it  as  convey- 
ing the  sanction  of  congress  to  the  acquisition  proposed.4 

In  1816  the  position  of  both  houses  was  clearly  set 
forth  in  connection  with  the  convention  of  1815  with 
Great  Britain,  which  was  in  contradiction  to  certain 
of  our  revenue  laws.  The  senate  held  that  these  laws 
were  repealed  by  the  treaty  and  that  no  act  of  congress 
was  necessary ;  but  the  house  thought  otherwise  and  the 
senate  finally  yielded  and  consented  to  the  passage  of  an 
act  repealing  the  laws,  it  being  agreed  that  it  should  not 
be  taken  as  a  precedent.5  The  position  of  the  senate 
has  been  upheld  by  an  attorney  general,6  but  the  supreme 
court  takes  the  opposite  view.7 

The  right  to  acquire  or  cede  territory  by  means  of 
the  treaty-making  power  has  also  been  questioned. 
Jefferson  thought  that  this  power  did  not  reside  in  any 
part  of  the  government  The  purchase  made  by  him 
and  that  of  i8i9,8  however,  were  acquiesced  in  and  their 
legality  confirmed  by  a  decision  of  the  supreme  court  in 
favor  of  the  power  of  the  government  to  "  acquire  new 
territory  either  by  conquest  or  by  treaty ;  "9  but  the 
question  again  came  up  for  discussion  when  the  annex- 
ation of  Texas  was  under  consideration. 

1  Exec.  Jour.,  II,  36-43. 

2  ist  Sess.,  33d  Congr.,  p.  1563,  statement  of  Mr.  Benton. 

3  Annals  of  Congr.,  2d  Sess.,  yth  Congr.,  pp.  90,  104. 

4  Ibid,,  ist  Sess.,  8th  Congr.,  p.  12. 

5  Ibid.,  ist  Sess.,  I4tli  Cougr.,  pp.  46  ff. 
(;  13  Op.,  355. 

7  Foster  v.  Neilson,  2  Peters,  314. 

8  The  treaty  was  adopted  unanimously,  but  at  the  next  session  Mr. 
Clay  introduced  a  resolution,  which  excited  much  debate,  declaring 
that  no  treaty  for  alienating  the  territory  of  the  United  States  was 
Valid  without  the  consent  of  congress.     It  was  held  then  that  the 
consent  might  be  given  after  the  ratification.     (Clay,  Works,  V,  206.) 

9  Am.  Insurance  Co.  et  al.,  v.  Canter,  i  Peters,  542. 


152  The  Origin  and  Development  of  the 

Some  held  that  the  settlement  of  boundary  disputes, 
only,  belonged  to  the  treaty  making  power,1  and  that 
for  the  acquisition  or  cession  of  territory  the  consent  of 
congress  was  necessary.  This  view  was  based  on  the 
clause  of  the  constitution  which  gives  to  congress  the 
right  to  dispose  of  territories  or  other  property  of  the 
United  States  and  that  which  gives  congress  power  to 
admit  new  states.2  There  were  a  greater  number  who, 
while  acknowledging  that  foreign  territory  might  be 
acquired  by  treaty,  denied  the  right  to  incorporate  an- 
other nation  by  treaty.3  The  annexation  of  Texas  by 
treaty  was  also  objected  to  because  it  would  be  the  adop- 
tion of  the  war  with  Mexico,  and  it  was  held  that  the  pres- 
ident and  the  senate  had  no  right  to  make  war  either 
by  declaration  or  adoption.4 

So  many  reasons,  other  than  the  constitutional  ones, 
operated  to  secure  the  rejection  of  the  treaty  that  it  is 
impossible  to  infer  from  it  that  there  was  a  majority  in 
the  senate  who  held  the  acquisition  of  this  territory,  by 
treaty,  to  be  unconstitutional  ;  just  as  it  is  impossible  to 
infer  from  the  adoption  of  the  jjOint  resolution  intro- 
duced in  the  house5  for  the  acquisition  of  Texas,  that  a 
majority  of  both  houses  considered  that  the  constitu- 
tional mode  of  acquiring  foreign  territory. 

The  request  of  President  Polk,  prior  to  the  negotia- 
tion of  the  treaty  with  Mexico,  for  an  appropriation  to 
be  used,  if  necessary,  in  the  negotiation,  does  not  seem 
to  have  been  regarded  by  him  as  a  request  for  a  previous 

1  Congr.  Globe,  ist  Sess.,  2Stli  Congr.,  p.  656,  and  p.  658,  note. 

2  Ibid.,  ist  Sess.,  28th  Congr.,  p.  656,  note  ;  2d  Sess.,  28th  Congr., 
p.  280. 

3  Ibid.,  ist  Sess.,  28th  Congr.,  App.,  pp.  539,  682,  722. 

4  Ibid.,  ist  Sess.,  28th  Congr.,  App.,  p.  474.     For  arguments  for  and 
against,  see  pp.  539,  558,  559,  685,  695. 

3  The  senate  committee  on  foreign  relations  reported  against  the 
adoption  of  the  house  resolution  on  the  ground  that  it  was  unconsti- 
tutional, holding  that  foreign  territory  could  be  acquired  only  by 
treaty.  (2d  Sess.,  28th  Congr.,  Sen.  Misc.  Docs.,  vol.  III»  No.  79,) 


United  States  Senate.  153 

legislative  sanction.1  The  senate,  however,  took  the 
opportunity  to  advise  the  president  to  take  all  proper 
measures  to  secure  peace,  and  signified  its  willingness  to 
make  the  appropriation  required.2 

When  the  Gadsden  treaty,  which  appropriated  a  large 
sum  for  the  purchase  of  foreign  territory,  was  under 
consideration,  the  acquisition  of  foreign  territory  with- 
out authorization  from  congress  was  again  declared  to 
be  a  breach  of  the  privileges  of  the  house,3  the  assertion, 
however,  being  warmly  contested.4  Nearly  all  seem  to 
have  conceded  the  right  to  grant  or  withhold  the  ap- 
propriation, though  the  call  for  papers  was  not  made,  it 
being  resisted  by  the  president's  party. 

The  next  discussion  on  the  subject  was  over  the  ap- 
propriation for  the  treaty  of  1867  with  Russia  for  the 
purchase  of  Alaska.  The  fourth  article  of  the  treaty 
provided  :  "But  the  cession,  with  the  right  of  immedi- 
ate possession,  is  nevertheless  to  be  deemed  complete 
and  absolute  on  the  exchange  of  the  ratifications  ;"5  and 
the  actual  delivery  of  the  territory  had  taken  place  be- 
fore the  appropriation  for  executing  the  treaty  was  made,6 
and  the  president  in  his  message  assumed  that  the  house 
must  pass  the  appropriation.7 

In  the  house  this  invasion  of  its  rights,  as  it  was 
called,  was  discussed  quite  as  much  as  the  expediency 
of  the  treaty.  An  amendment  to  the  bill  making  the 

1  Exec.  Jour.,  VII,  133. 

'/«£,  vii,  137,139- 

3Congr.  Globe,  ist  Sess.,  33d  Congr.,  vol.  28,  part  ii,  pp.  15,  19. 

4 Ibid.,  ist  Sess.,  33d  Congr.,  vol.  28,  part  ii,  pp.  1561,  1563. 

5  Ibid.,  2d  Sess.,  4cth  Congr.,  p.  1871. 

c Ibid.,  2d  Sess.,  4oth  Congr.,  p.  1871. 

7  "  It  will  hardly  be  necessary  to  call  the  attention  of  Congress  to 
the  subject  of  providing  for  the  payment  to  Russia  of  the  sum  stipu- 
lated in  the  treaty  for  the  cession  of  Alaska.  Possession  having  been 
formally  delivered  to  our  commissioner,  the  territory  remains  for  the 
present  in  care  of  a  military  force."  (Annual  Messages  ed.  by  Poore> 
1867,  p.  23.) 


154  The  Origin  and  Development  of  the 

appropriation,  providing  that  thereafter  no  purchase  of 
foreign  territory  should  be  concluded  until  after  provi- 
sion had  been  made  by  law  for  payment,  and  denying 
that  the  president  and  senate  had,  by  the  constitution,  a 
right  to  complete  the  purchase  of  foreign  territory  be- 
fore the  necessary  appropriation  had  been  made  by  an 
act  of  congress,  was  lost  in  the  house  by  two  votes 
only  ;x  and  it  was  agreed,  by  a  vote  of  98  to  49,  to  prefix 
to  the  bill  making  the  appropriation  a  preamble  stating 
that,  inasmuch  as  the  payment  of  money,  the  accepting 
of  the  cession  of  territory,  and  the  stipulation  that  the 
Russians  should  have  all  the  rights  and  privileges  of 
American  citizens,  were  subjects  submitted  to  the  powers 
of  congress,  to  which,  therefore,  the  consent  of  congress 
was  necessary  to  give  to  them  full  force  and  validity, 
congress  had  taken  into  consideration  the  said  treaty 
and  agreed  to  its  stipulations.2  This  was  stricken  out 
in  the  senate  without  debate  ;3  and  the  subject  going  to 
a  conference  committee  a  preamble  was  substituted 
which,  while  acknowledging  that  the  subjects  referred 
to  were  within  the  power  of  congress,  and  that  they 
could  not  be  carried  into  full  force  and  effect  without 
the  consent  of  both  houses  of  congress,  struck  out  that 
portion  of  the  preamble,  adopted  by  the  house,  which 
stated  that  congress  had  taken  the  treaty  into  considera- 
tion, and  also  the  first  section  of  the  bill  which  declared 
the  assent  of  congress  to  the  treaty.4  In  the  senate  this 
report  was  accepted  without  debate  and  in  the  house  by 
a  vote  of  91  to  48.  This  was  advocated  both  because 
of  the  necessity  of  passing  the  appropriation,  it  being 
thought  that  the  house  had  sufficiently  defined  its  posi- 

1  Congr.  Globe,   2d  Sess.,  4otk  Congr.,  p.  4055,  yeas  78,  nays  80,  40 
not  voting. 

2  Ibid.,  2d  Sess.,  4oth  Congr.,  p.  4055. 

3  Ibid.,  p.  4159. 

4  Ibid. ,  p.  4404. 


United  States  Senate.  155 

tion,1  and  because  it  was,  in  effect,  the  same  as  the 
resolution  first  adopted.2 

As  has  been  seen,  the  senate  in  1816  held  that  no  act 
of  congress  was  necessary  to  render  valid  commercial 
regulations  contained  in  a  treaty.  In  1832,  when  a 
convention  with  France  which  contained  an  article  reg- 
ulating the  duties  on  French  wine  was  under  considera- 
tion,3 a  resolution,  introduced  in  the  senate  by  Mr.  Clay, 
stating  that  the  senate  entertained  objections  to  that 
article  which  would  have  been  decisive  against  its 
provisions  if  the  article  had  stood  alone,  and  that 
they  did  not  think  that  it  should  be  taken  as  a  prece- 
dent in  the  future  exercise  of  the  treaty  making  power, 
was  tabled.4 

When  in  1844  the  commercial  treaty  with  the  Ger- 
manic Zollverein  was  submitted  to  the  senate,  it  changed 
its  position  and  took  ground  as  extreme  as  any  ever  urged 
in  the  other  house.5  Tyler,  in  submitting  the  treaty, 
said :  "  Inasmuch  as  the  provisions  of  the  treaty  come 
to  some  extent  in  conflict  with  existing  laws,  it  is  my 
intention,  should  it  receive  your  approval  and  ratifica- 
tion, to  communicate  a  copy  of  it  to  the  House  of  Rep- 
resentatives, in  order  that  the  House  may  take  such  ac- 
tion upon  it  as  it  may  deem  necessary  to  give  efficiency 
to  its  provisions."  6 

The  senate  committee  of  foreign  affairs,  to  whom  the 
treaty  was  referred,  reported  that  they  believed  the  con- 
trol of  trade,  and  the  function  of  taxing,  were  indisput- 
ably given  to  congress,  and  that  they  were  not  prepared 

1  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  p.  4393,  urged  by  Mr.  Lough- 
bridge. 

*  Ibid.,  p.  4394,  urged  by  Mr.  Banks. 

3  Statutes  at  Large,  vol.  VIII,  p.  432,  Art.  VII. 

4  Exec.  Jour.,  IV,  209. 

5  This  treaty  changed  duties  laid  by  law,  and  put  it  beyond  the  power 
of  congress  to  exceed  the  stipulated  maximum  of  duties  on  imports, 
for  at  least  three  years. 

6  Exec.  Jour.,  VI,  263. 


156  The  Origin  and  Development  of  the 

to  sanction  so  large  an  innovation  as  the  adoption  of  the 
present  treaty  would  be,  "  upon  ancient  and  uniform 
practice  in  respect  of  the  Department  of  Government 
by  which  duties  on  imports  should  be  imposed."  *  The 
next  day  after  the  report  was  made,  the  convention  was 
laid  upon  the  table  by  a  vote  of  26  to  18,  which,  it  would 
seem,  should  indicate  the  views  of  the  members  on  the 
constitutional  question,  as  that  was  the  only  objection 
made  to  it ;  but  Calhoun  says  that  it  was  defeated  from 
strictly  party  motives,2  and  this  statement  is  supported 
by  the  fact  that  the  eighteen  who  voted  against  tabling 
the  convention  were  Democrats,  being  the  direct  descend- 
ants of  the  strict  construction  Republicans,  who,  in  1795, 
had  wished  to  restrict  so  closely  the  power  of  the  presi- 
dent and  senate  in  making  treaties. 

The  president  not  regarding  this  action  of  the  senate 
as  final,  again  submitted  the  question  to  it,3  when  the  com- 
mittee re-affirmed  their  former  report,  stating  that  the  ob- 
ject of  the  committee  in  its  former  action  "  was  to  reach  the 
end  of  the  refusal  to  ratify  the  convention  in  the  mode 
most  conformable  to  the  comity  due  to  the  parties  to  it."4 
The  committee,  while  declaring  that  the  power  of  the 
president  and  senate  to  interfere  in  the  regulation  of  im- 
ports was  not  contested,  or  the  possible  occurrence  of 
an  occasion  where  it  might  be  advisable,  held  that  in 
the  present  case  it  was  not  so. 

Since  then  the  senate  has  frequently  exercised  this 
power,  though  not  without  objection  being  made.  In 
1885  the  house  committee  on  the  judiciary  made  an  elab- 
orate report  on  the  powers  of  the  executive  in  making 
treaties  affecting  the  tariff,  which  was  accompanied  by  a 
resolution  declaring  :  "  That  the  President,  by  and  with 

1  Bxec.  Jour.,  VI,  p.  333. 

2  Winsor,  Narrative  and  Critical  History,  vol.   VII,  p.  512,  citing 
Lawrence,  Wheaton's  International  Law,  ed.  1863,  P-  ^v' 

3  Bxec.  Jour.,  VI,  357. 

4  Ibid. ,  407. 


United  States  Senate.  157 

the  advice  and  consent  of  the  Senate,  cannot  negotiate 
treaties  with  foreign  governments,  by  which  the  duties 
levied  by  Congress  can  be  changed  or  abrogated ;  and 
such  treaties  to  be  operative  as  laws,  must  have  the 
sanction  of  Congress."  l  The  disapproval  of  the  regu- 
lation of  duties  by  the  treaty-making  power  was  also 
shown  by  proposals  for  an  amendment  to  the  constitu- 
tion requiring  the  prior  consent  of  congress  to  recipro- 
city treaties  ;  and  one  for  the  election  of  senators  by  the 
people,  because  the  senate  was  arrogating  to  itself  the 
power  of  levying  taxes  by  treaties. 

There  are  a  few  instances  in  which  treaties  regulating 
the  revenue  have  recognized  the  rights  of  the  house  by 
requiring  that  the  treaty  should  not  go  into  effect  until 
congress  had  passed  the  laws  necessary  to  put  it  in 
operation.  Such  a  provision  was  contained  in  the  re- 
ciprocity treaty  of  1854  with  Great  Britain,2  in  the 
reciprocity  treaty  of  1875  with  Hawaii,3  and  in  that  of 
1883  with  Mexico.4  In  the  latter  case  the  necessary 
legislation  was  never  passed  by  the  congress  of  the  United 
States. 

The  decision  of  the  circuit  court  of  the  United  States 
is  in  favor  of  the  position  taken  by  the  house.  It  is 
held  that,  in  the  execution  of  a  treaty  which  stipulates 
for  the  payment  of  money,  the  representatives  "  exercise 
their  own  judgment  in  granting  or  withholding  the 
money.  They  act  upon  their  own  responsibility,  and 
not  upon  the  responsibility  of  the  treaty-making  power. 
It  cannot  bind  or  control  the  legislative  action  in  this 
respect,  and  every  foreign  government  may  be  presumed 
to  know  that,  so  far  as  the  treaty  stipulates  to  pay  mon- 
ey, the  legislative  sanction  is  required."5 

1  2d  Sess.,  48th  Congr.,  House  Res.,  No.  2680. 

*  Statutes  at  Large,  vol.  X,  p.  1092,  Art.  V. 

3  Treaties  and  Conventions,  1776-1887,  p.  548,  Art.  V. 

*  Ibid.,  p.  718,  Art.  VIII. 

5  Turner  vs.  Am.  Baptist  Church,  5  McLean's  C.  C.  R.,  347. 


158  The  Origin  and  Development  of  the 

The  United  States,  however,  did  not  recognize  this  in 
1834,  in  the  case  of  France,  when  it  was  maintained 
that  a  failure  to  execute  a  treaty,  duly  made  and  ratified 
by  the  proper  authorities,  was  a  sufficient  cause  for  war. 
Such  is  also  the  view  taken  by  high  authorities  on  in- 
ternational law.  Pomeroy  says  that  the  neglect  or  re- 
fusal of  congress  to  carry  out  the  provisions  of  a  treaty, 
would  be  a  sufficient  cause  for  war  ;l  and  Wheaton  that, 
as  a  matter  of  international  law,  there  is  no  doubt  that 
the  nation  is  bound.2 

1  Constitutional  Law,  p.  450,  sec.  676. 

2  International  Law,  p.  339,  sec.  266,  note.     Halleck  (International 
Law,  vol.  I,  p.  234)  holds  the  same  ;  and  much  the  same  view  is  taken 
by  Attorney  General  Gushing,  who  says :  "  Such  action  may  be  re- 
garded as  a  political  duty  under  ordinary  circumstances,  and  in  no 
case  has  such  legislation  been  heretofore  refused,"    (6  Op.,  Gushing, 
1854.) 


CHAPTER  V. 


THE   SENATE   AS   A  JUDICIAL   BODY. 

THE  judicial  functions  of  the  senate  have  rarely  been 
exercised,  there  having  been  but  seven  trials  in  the  pe- 
riod of  over  a  hundred  years  since  the  organization  of 
the  government  under  the  present  constitution.1 

The  first  trial  was  that  of  Senator  Blount  in  1798. 
Documents  containing  evidence  of  his  guilt  were  trans- 
mitted by  the  president  to  both  houses  at  the  same  time, 
and  the  senate  was  considering  his  conduct  when  the 
resolution  for  impeachment  was  received  from  the  house. 
This  was  near  the  end  of  the  session,  and  a  couple  of 
months  of  the  next  session  had  passed  by  before  the  ar- 
ticles of  impeachment  were  received  ;  and  the  trial  did 
not  take  place  until  the  following  session. 

The  articles  of  impeachment  exhibited  by  the  house 
charged  Blount  with  setting  on  foot,  on  the  western 
frontiers,  an  expedition  to  conquer  the  territories  of 
Spain  and  transfer  them  to  Great  Britain ;  with  exciting 
the  Indians  to  attack  the  Spanish ;  with  corruption  of 
the  Indian  interpreter,  and  attempts  to  alienate  the  con- 
fidence of  the  Indians  from  our  agent ;  and  with  en- 
deavoring to  excite  the  Indians  against  the  United  States,  • 
over  the  settlement  of  certain  boundary  questions. 
Blount  not  appearing  at  the  trial,  he  was  allowed  to  be 
heard  by  counsel,  who  pleaded  a  lack  of  jurisdiction  on 
the  part  of  the  senate.  They  maintained  : 

"  I.  That  only  civil  officers  of  the  United  States  are 
impeachable ;  and  that  the  offences  for  which  an  Im- 

1  These  were  of  Senator  Blount  in  1798,  Judge  Pickering  in  1803, 
Judge  Chase  in  1804  and  1805,  Judge  Peck  in  1830,  Judge  Humphries 
in  1862,  President  Johnson  in  1868,  and  Secretary  Belknap  in  1876. 


i6o  The  Origin  and  Development  of  the 

peacliment  lies,  must  be  committed  in  the  execution  of 
a  public  office. 

"  II.  That  a  Senator  is  not  a  civil  officer,  impeachable 
within  the  meaning  of  the  Constitution ;  and  that,  in 
the  present  instance,  no  crime  or  misdemeanor  is  charged 
to  have  been  committed  by  William  Blount  in  the  char- 
acter of  a  Senator."  * 

The  right  of  the  senate  to  try  a  person  impeached, 
after  his  expulsion  from  office,  was  also  questioned. 

The  question  of  jurisdiction  was  argued  for  and  against 
by  the  managers  and  counsel  for  four  days,  and  then  con- 
sidered by  the  senate  in  secret  session  for  four  days  more, 
when  it  was  decided,  fourteen  to  eleven,  that  William 
Blouiit  was  not  a  civil  officer  within  the  meaning  of  the 
constitution  of  the  United  States,  and  therefore  was  not 
liable  to  be  impeached  by  the  house  of  representatives.2 

This  far  reaching  decision,  which  removed  all  senators 
and  representatives  from  the  fear  of  impeachment,  and 
which,  according  to  Rawle,  was  undoubtedly  contrary  to 
the  intention  of  the  constitution,  was  very  severely  criti- 
cised at  the  time  ;  and  the  senate  later  put  on  record  its 
belief  that  senators  and  representatives  are  civil  officers, 
by  holding  that  the  oath  prescribed  for  "  civil  officers," 
by  the  act  of  1862,  must  be  taken  by  senators. 

The  next  person  to  be  impeached  was  John  Pickering, 
a  judge  of  the  federal  district  court  of  New  Hampshire. 
He  was  charged  with  decisions  contrary  to  law  and  with 
drunkenness  and  profanity  on  the  bench.3  Pickering 
failing  to  appear  when  summoned,  either  in  person 
or  by  counsel,  a  letter  from  his  son  was  read,  stating 
that  his  father  was  insane,  and  asking  for  time  in  which 
to  collect  proofs  of  it.  Enclosed  was  also  a  letter  of 
Mr.  Harper  asking  that  he  might  be  allowed  to  appear 

1  Annals  of  Congress,  ist  Sess. ,  5th  Congr.,  p.  2263. 

2  Ibid.,  p.  2318. 

3  See  Articles  of  Impeachment. 


United  States  Senate.  161 

on  behalf  of  the  petitioner,  since  it  was  impossible  for 
any  one  to  appear  as  attorney  or  agent  of  the  judge,  as 
he  was  insane.1 

The  managers  on  the  part  of  the  house  objected  to 
this  ;2  but  the  senate,  after  debate,  decided  that  they 
woiild  "  hear  evidence  and  counsel  respecting  the  insani- 
ty of  John  Pickering."3  As  the  managers  did  not  feel 
themselves  under  any  obligation  to  discuss  a  preliminary 
question  thus  raised  by  a  third  person,  unauthorized  by 
the  person  accused,  they  withdrew  to  take  the  opinion 
of  the  house  as  to  their  future  action.  The  senate  re- 
fusing to  adjourn  until  they  should  hear  further  from 
them,  Mr.  Harper  was  immediately  heard  in  support  of 
the  plea  of  insanity.  The  next  day  the  senate  notified 
the  managers  that  it  was  ready  to  hear  evidence  in  s. up- 
port  of  the  articles  of  impeachment  Accordingly,  on 
March  eighth,  the  trial  was  continued.  The  argu- 
ment of  the  managers  and  the  taking  of  testimony  oc- 
cupied two  days ;  when,  the  senate  having  refused  to 
postpone  the  decision  to  give  time  for  further  testimony 
to  be  produced,  the  judge  was  declared  guilty  by  a  strict 
party  vote,  all  the  Federalists  voting  not  guilty,  and  re- 
moved from  office ;  but  the  further  disqualification  to 
hold  office  was  not  added.4 

Scarcely  was  judgment  pronounced  in  the  case  of 
Pickering  when  the  impeachment  of  Samuel  Chase, 
associate  justice  of  the  supreme  court,  was  received.  At 
that  time  a  custom  prevailed  to  a  certain  extent,  both 
here  and  in  England,  of  delivering  a  political  speech  in 
the  charge  to  the  grand  jury.  Chase  was  a  strong  Fed- 
eralist and  the  delivery  by  him  of  such  a  speech,  in 
which  he  criticised  severely  certain  acts  of  the  Republi- 
cans, excited  much  indignation  and  led  to  his  impeach- 

1  Annals  of  Congress,  ist  Sess. ,  8th  Congr. ,  p.  330. 

2  Ibid.,  p.  331. 

3  Ibid.,  p.  333- 

4  Ibid.,  pp.  362-368. 


1 62  The  Origin  and  Development  of  the 

ment.  The  eighth  article  of  impeachment  was  based 
on  this  speach,  which  it  declared  was  delivered  with  in- 
tent to  excite  the  grand  jury  and  people  against  the  gov- 
ernments of  the  United  States  and  Maryland.  The 
charges  made  in  the  other  seven  articles  were  brought 
to  light  by  the  investigation  of  the  house  committee  in 
his  career  as  judge,  belonging  to  a  period  of  time  five 
years  earlier,  and  charged  him  with  arbitrary,  oppressive, 
and  unjust  conduct  in  the  trial  of  certain  cases. 

Chase,  while  acknowledging  that  he  had  in  most  cases 
done  as  charged  by  the  articles  of  impeachment,  denied 
the  motives  imputed  to  him  for  so  doing,  and  declared 
that,  in  each  case,  he  believed  himself  to  be  acting  in 
strict  accordance  with  justice  and  right,  and  that  if  he 
were  wrong  it  was  an  error  of  judgment,  and  not  a  crime, 
that  he  had  committed.  He  called  attention  to  the  pre- 
cedents for  the  action  charged  in  the  eighth  article,  and 
pointed  out  that,  as  he  had  violated  no  law,  he  could 
not  be  punished.1 

The  trial  lasted  nearly  a  month,  when  the  vote  was 
taken  and  the  judge  acquitted,  there  being  but  two  arti- 
cles on  which  a  majority  pronounced  him  guilty,  and 
this  although  there  was  a  strong  Republican  majority  in 
the  senate. 

The  next  person  tried  was  James  Peck,  a  judge  of  the 
federal  district  court  of  Missouri.  He  was  charged  by 
the  house  with  having  arbitrarily,  unjustly,  and  oppres- 
sively, under  color  and  pretence  of  law,  punished  for 
contempt  of  court  a  certain  attorney  who  had  published 
in  a  newspaper  a  criticism  of  a  decision  of  Judge  Peck 
on  a  land  case.2  The  action  referred  to  had  been  taken 
in  1826,  but  it  was  not  until  1830  that  the  impeachment 
was  decided  upon,  though  attempts  to  procure  his  im- 
peachment had  been  made  before.  - 

1  Annals  of  Congress,  2d  Sess.,  8th  Congr.,  102  ff. 

2  See  Articles  of  Impeachment,  Congr.  Debates,    ist  Sess.,  2ist 
Congr.,  pp.  411,  412. 


United  States  Senate.  163 

The  judge  in  his  defence  asserted  that  the  paper  re- 
ferred to  was  a  contempt  of  court,  because  it  misrepre- 
sented the  opinion  of  the  court,  which  it  professed  to 
censure,  and  tended  to  excite  the  public  mind  against  it ; 
and,  moreover,  that  he  was  justified  in  believing  that 
this  misrepresentation  was  willfully,  wantonly,  and  ma- 
liciously made.  He  further  maintained  that  if  he  were 
wrong  in  this,  it  was  an  error  of  judgment,  and  not  a 
misdemeanor  willfully  and  knowingly  done  in  violation 
of  the  law,  or  with  the  intention  imputed  in  the  articles 
of  impeachment.1 

The  trial  began  in  the  first  session  of  the  Twenty-first 
Congress,  when  the  answer  of  the  respondent  was  filed. 
It  was  then  postponed  until  the  next  session,  in  which  it 
continued  uninterruptedly  from  December  2Oth  to  Jan- 
uary 3ist,  when  Peck  was  declared  not  guilty.2 

The  next  trial  was  that  of  West  H.  Humphries,  judge 
of  the  federal  district  court  of  Tennessee,  who,  though 
actively  engaged  in  the  war  of  the  rebellion,  had  not 
resigned  his  position  as  United  States  judge.  Impeach- 
ment, therefore,  became  necessary  to  render  the  office 
vacant.  He  was  accordingly  impeached,  and  tried  in 
due  form,  though  naturally  he  neither  appeared  in  per- 
son nor  by  attorney  at  the  trial.  The  seven  articles  of 
impeachment  were  based  on  a  secession  speech  delivered 
at  Nashville  irf  1860,  and  on  his  acceptance  of  the  office 
of  confederate  judge,  and  he  was  convicted  by  the  unan- 
imous vote  of  the  senate. 

The  next  trial,  that  of  President  Johnson,  is  the  most 
important  one,  both  because  it  was  the  trial  of  the  chief 
officer  of  the  United  States,  and  because  of  the  strong 
partisan  feeling  connected  with  it,  which  made  this  trial 
the  most  severe  test  of  the  justice  and  impartiality  of  the 
senate  as  a  judicial  body  which  it  has  ever  undergone. 

1  Sen.  Jour.,  2d  Sess.,  2ist  Congr.,  App.,  pp.  251-321. 

2  Twenty-two  voting  not  guilty,  and  twenty-one  guilty. 


164  The  Origin  and  Development  of  the 

The  conflict  between  President  Johnson  and  congress 
had  caused  several  proposals  of  impeachment  to  be 
made.  In  November,  1867,  the  judiciary  committee, 
after  a  long  investigation,  reported  in  favor  of  an  im- 
peachment,1 but  the  resolution  was  rejected  by  the  house  ;2 
and  it  was  not  until  the  removal  of  Secretary  Stanton, 
contrary  to  the  tenure  of  office  act  as  held  by  both 
houses,  and  the  appointment  of  Thomas  as  secretary  ad 
interim,  that  the  impeachment  of  the  president  was  re- 
solved upon.  Stanton  had  refused  to  vacate  his  office, 
and  at  once  communicated  to  the  house  of  representa- 
tives notice  of  his  attempted  removal.  The  same  day 
a  resolution  for  the  impeachment  of  the  president  was 
submitted,  and,  after  being  debated  for  three  days,  was 
adopted.3 

The  promptitude  with  which  this  impeachment  was 
carried  through,  was  something  new.  The  resolution  of 
impeachment  was  communicated  to  the  senate  the  25th 
of  February,  and  on  March  4th  the  articles  of  impeach- 
ment were  presented.  These  were  eleven  in  number. 
The  first  three  charged  the  president  with  violation  of 
the  tenure  of  office  act  in  the  removal  of  Stanton  and 
appointment  of  Thomas.  The  next  three  charged  him 
with  conspiracy  with  Thomas,  and  others  unknown,  for 
the  violation  of  the  tenure  of  office  act,  and  the  seizure 
by  force  of  the  property  of  the  United  States  in  the  de- 
partment of  war.  The  eighth  article  related  to  the  al- 
leged attempts,  by  means  of  the  appointment  of  Thomas, 
to  control  the  disbursements  of  the  money  in  the  military 
service.  The  ninth  article  charged  the  president  with 
attempting  to  induce  General  Emory  to  violate  the  act 
regulating  the  military  service  ;  while  articles  ten  and 
eleven  charged  him  with  designing  and  intending  to  set 

1  Congr.  Globe,  ist  Sess.,  4oth  Congr.,  pp.  791,  792. 

2  Ibid.,  2d  Sess.,  4oth  Congr. ,  pp.  67,  68. 

3  Ibid.,  ad  Sess.,  4oth  Congr.,  pp.  1329,  1400. 


United  States  Senate.  165 

aside  the  lawful  authority  of  congress,  by  exciting  the 
people  against  it,  by  scandalous  and  inflammatory 
speeches,  and  by  declaring  that  the  Thirty-ninth  Congress 
was  no  congress.  The  eleventh  article  also  charged  him 
with  "  unlawfully  devising  and  contriving "  means  to 
prevent  the  execution  of  the  tenure  of  office  act,  the 
act  for  the  regulation  of  the  army,  and  the  recon- 
struction acts. 

The  president  in  reply  to  the  first  three  articles  denied 
that  Stan  ton's  case  came  under  the  provisions  of  the 
tenure  of  office  act,  inasmuch  as  he  was  appointed  by 
President  Lincoln,  and  had  not  been  reappointed  ;  he 
therefore  held  that  there  was  a  vacancy  existing  when 
Thomas  was  appointed.  He  further  denied  that  the  re- 
moval of  Stanton  was  made  with  intent  to  violate  the 
tenure  of  office  act,  and  also  that  there  was  a  conspir- 
acy with  Thomas,  and  he  declared  that  he  only  said  to 
Emory  in  conversation  what  he  had  also  said  in  messages 
to  congress.  In  answer  to  articles  ten  and  eleven  he 
claimed  the  right  of  freedom  of  speech,  and  he  denied 
that  he  had  ever  said  that  the  Thirty-ninth  Congress  was 
not  a  congress,  or  had  attempted  to  evade  the  execution 
of  the  laws.  He  also  called  attention  to  the  fact  that  the 
charges  made  in  these  last  articles  did  not  relate  to  any 
official  wrong  doing  or  misconduct. 

As  the  total  number  of  senators  was  fifty-four,  and 
twelve  of  these  were  Democrats,  who  would  be  sure  to 
vote  not  guilty,  there  could  be  no  conviction  should  the 
proof  offered  fail  to  convince  seven  of  the  Republican 
senators,  and  this  was  what  happened.  Several  Repub- 
lican senators  held  that,  inasmuch  as  at  the  time  of  the 
passage  of  the  tenure  of  office  act,  it  was  admitted 
that  it  did  not  apply  to  the  cabinet  officers  of  Mr.  Lin- 
coln, they  could  not  therefore  vote  guilty  on  the  Stan- 
ton  articles.  On  the  Emory  and  conspiracy  articles  the 
proof  was  weak,  and  the  tenth  article  was  based  on 


1 66  The  Origin  and  Development  of  the 

unofficial  utterances.  Before  the  end  of  the  trial  it 
was  apparent  that  the  second,  third  and  eleventh 
articles  were  the  ones  on  which  the  largest  number 
would  vote  guilty.  Accordingly,  the  vote  was,  by  order 
of  the  senate,  first  taken  on  the  eleventh  article,  there 
being  35  for  conviction  and  19  for  acquittal.  The  sen- 
ate then  adjourned  till  May  25th,  when  the  vote  was 
taken  on  the  second  and  third  articles,  with  the  same  re- 
sult. The  senate  then  adjourned  sine  die,  and  the  chief 
justice  directed  a  verdict  of  acquittal  to  be  entered  upon 
the  record. 

The  charges  of  corruption  and  intimidation  of  sena- 
tors, which  were  so  loudly  made  in  the  press,  and  which 
caused  committees  of  investigation  to  be  appointed  in 
both  houses,  were  never  proven. 

The  seventh  and  last  trial  was  that  of  W.  W.  Belknap, 
secretary  of  war  under  Grant.  He  was  unanimously  im- 
peached by  the  house  on  the  charge  of  having,  for  six 
years,  received  money  for  the  appointment  and  retention 
in  office  of  the  post  trader  at  Port  Sill.  Secretary  Bel- 
knap  had  resigned,  and  his  resignation  had  been  accepted 
a  few  hours  before  the  adoption  of  a  resolution  for  his  im- 
peachment ;  and  his  plea  was  that,  inasmuch  as  he  was, 
both  before  and  at  the  time  of  the  adoption  of  the  reso- 
lution of  impeachment,  a  private  citizen,  the  senate  had 
no  jurisdiction  in  the  case.1 

The  house  in  their  replication,  which  upheld  the  ju- 
risdiction of  the  senate,  pointed  out  that  the  respondent 
was  an  officer  of  the  United  States  at  the  time  of  the 
commission  of  the  acts  charged,  and  while  the  investi- 
gation of  his  conduct  was  going  on,  his  resignation  be- 
ing tendered  with  full  knowledge  of  the  proceedings 
and  with  intent  to  evade  them.2  Secretary  Belknap  de- 
nied that  he  had  resigned  in  order  to  evade  any  pro- 

1  Congr.  Record,  ist  Sess.,  44th  Congr.    Trial  of  Belknap,  p.  6. 

2  Ibid.     Trial  of  Belknap,  p.  76. 


United  States  Senate.  167 

ceedings  of  the  house  of  representatives,  and  that  the 
house  had  his  case  under  consideration  prior  to  his  resig- 
nation, since  it  had  neither  taken  any  steps  for  the  in- 
vestigation of  his  conduct,  or  authorized  a  committee  to 
do  so  ;  the  committee  on  expenditures  of  the  war  depart- 
ment, who  had  "  been  pretending  to  make  some  inquiry 
into  his  conduct,"  not  having  been  authorized  to  do  so, 
and  being  still  engaged  in  examining  witnesses  when 
the  house  received  news  of  his  resignation. 

After  hearing  the  arguments  on  both  sides,  the  ques- 
tion of  jurisdiction  was  debated  by  the  senate  in  secret 
session  for  thirteen  days,  when  it  was  decided  by  a  vote 
of  37  to  29,  that  Secretary  Belknap  was  amenable  to  im- 
peachment, noth withstanding  his  resignation  from  office.1 
The  counsel  for  defence,  holding  that  their  plea  had  been 
sustained  inasmuch  as  two-thirds  had  not  voted  against 
it,  refused  to  plead  farther  to  the  merits  of  the  case, 
whereupon,  in  accordance  with  the  order  of  the  senate, 
the  trial  proceeded  as  on  a  plea  of  not  guilty.  The  trial 
continued  throughout  the  month  of  August>  and  when 
the  vote  was  taken  it  stood  36  to  25  on  all  but  the  last 
article,  on  which  it  was  37  to  25.  Belknap  was  accord- 
ingly acquitted. 

The  two  trials  most  important  in  the  interpretation  of 
the  constitution  on  the  subject  of  impeachments  are  the 
first  and  last, — the  first  because  it  declared  senators  and 
representatives  not  to  be  civil  officers  in  the  meaning  of 
the  constitution,  and  therefore  not  liable  to  impeachment; 
and  the  last  because  of  the  position  taken  as  to  the  effect 
of  resignation  upon  the  amenability  to  impeachment  of 
the  officer  concerned. 

At  the  first  trial  all  the  rules  and  forms  of  procedure 
for  the  conduct  of  the  trial  had  to  be  decided  upon,  and 
the  practices  then  adopted  have  for  the  most  part  been 
followed  since,  others  being  added  as  occasion  arose, 

1  Congr.  Record.     Trial  of  Belkuap,  p.  76. 


1 68  The  Origin  and  Development  of  the 

The  rules  adopted  at  the  first  trial  were  added  to  and 
readopted  at  the  second  and  third  trials,  and  then  re- 
mained the  same  until  the  trial  of  President  Johnson, 
when  they  underwent  a  complete  revision. 

On  receipt  of  the  articles  of  impeachment  a  summons 
is  issued  to  the  person  accused,  to  appear  on  a  certain 
day  and  answer  the  charges  made  against  him.  He  may 
appear  either  in  person  or  by  counsel,  and  his  answer  to 
the  articles  of  impeachment  is  at  once  filed.  If  he  does 
not  appear  in  either  way,  the  trial  proceeds  as  on  a  plea 
of  not  guilty.  After  the  filing  of  the  answer  of  the  res- 
pondent, time  is  usually  given  for  the  consideration  of 
the  rejoinder,  and  when  the  court  of  impeachment  again 
meets,  the  arguments  of  the  counsel  and  managers  are 
heard.  Witnesses  are  examined  and  cross-examined  in 
the  usual  way. 

The  rules  of  the  first  and  third  trials  were  adopted  by 
the  senate  before  its  organization  as  a  court  of  impeach- 
ment by  the  taking  of  the  oath,  but  at  the  second  trial 
not  until  afterwards.  When  the  rules  for  the  trial  of 
President  Johnson  were  under  consideration,  objection 
was  made  to  their  adoption  before  the  taking  of  the 
oath,  on  the  ground  that  the  senate,  sitting  in  its  legisla- 
tive capacity,  had  no  right  to  adopt  rules  for  governing 
its  action  as  a  judicial  body.  The  objection  was,  how- 
ever, overruled,  and  the  rules  adopted  by  the  senate  in 
legislative  session  ;  but  they  were  afterwards  readopted 
pro  forma  by  the  court  to  accord  with  the  conviction  of 
the  chief  justice  on  that  point.1 

Another  point  on  which  the  chief  justice  differed 
from  the  senate  was  in  regard  to  the  time  in  the  pro- 
ceedings on  an  impeachment  when  the  senate  should  be 
organized  as  a  court  by  the  taking  of  the  oath.  At  the 
trials  of  Blount  and  Pickering,  the  oath  was  not  taken 
until  the  trial  was  about  to  begin,  but  at  the  other  trials 

1  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  Supplement,  p.  5. 


United  States  Senate.  169 

it  was  taken  preparatory  to  the  receipt,  from  the  house, 
of  the  articles  of  impeachment.  The  rules  adopted  in 
1868  provided  for  the  administration  of  the  oath  imme- 
diately after  the  receipt  of  the  articles  of  impeachment,1 
and  it  was  so  administered  in  that  and  the  following 
trial,  in  spite  of  a  communication  of  the  chief  justice, 
in  which  he  held  that  not  only  should  the  taking  of  the 
oath  precede  the  receipt  of  the  articles  of  impeachment, 
but  also  the  actual  announcement  of  the  impeachment.2 
The  house  has  always  accompanied  an  impeachment 
by  a  demand  that  the  senate  "do  take  order"  for  the 
appearance  of  the  person  accused.  At  the  first  trial  the 
senate,  on  the  receipt  of  the  impeachment,  had  held 
Blount  in  $20,000  bail ;  and  when,  on  the  following  day, 
he  was  expelled  from  the  senate,  and  his  sureties  gave 
him  up,  it  was  ordered  that  the  messenger  take  him  into 
custody  "  until  he  shall  enter  into  recognizance  himself, 
in  the  sum  of  $1,000,  with  two  sufficient  sureties  in  the 
sum  of  $500  each,"  which  he  did  on  the  following  day.3 
When  the  same  demand  was  made  with  reference  to 
Judge  Pickering  it  was  resolved,  as  in  the  former  case  : 
"That  the  Senate  will  take  proper  order  thereon."  No 
action,  however,  was  taken,  and  a  committee  appointed 
at  the  next  session  to  inquire  if  any  further  proceeding 
ought  to  be  taken  regarding  the  impeachment,  reported 
that  the  senate  had  no  constitutional  power  to  take  into 
custody  the  body  of  the  person  accused,  and  that  all  that 
was  necessary  was  a  notification  to  the  party  concerned, 
of  the  impeachment,  it  being  optional  with  him  whether 
he  appeared  in  person,  or  by  attorney,  or  not  at  all. 
The  committee,  therefore,  held  that  no  further  proceed- 
ing should  be  taken  by  the  senate,  until  after  the  receipt 
of  the  articles  of  impeachment/ 

1  Rule  3. 

2  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  p.  1644. 

3  Annals  of  Congress,  istSess.,  5th  Congr.,  p.  44. 

4  Ibid.,  ist  Sess.,  8th  Congr.,  p.  317. 


170  The  Origin  and  Development  of  the 

Another  change  is  in  regard  to  the  attendance  of  the 
house.  The  rules  adopted  at  the  first  trial  provided  for 
no  accommodations  for  the  members  of  the  house,  and 
there  is  no  notice  of  their  having  attended,  though  the 
house  adjourned  during  the  progress  of  the  trial,  it 
being  thought  improper  to  proceed  with  the  business  of 
the  house  in  the  absence  of  so  considerable  a  number  of 
its  members,1  At  the  second  trial,  though  prepara- 
tions were  made  for  the  accommodation  of  the  house  in 
the  senate  chamber  during  the  trial,  and  the  house  was 
notified  of  the  fact,  it  did  not  adjourn  during  the  trial, 
except  when  judgment  was  being  pronounced,  at  which 
time  it  attended  in  the  senate  chamber.  Since  then  it 
has  always  been  the  custom  of  the  house  to  be  present 
in  the  senate  during  the  progress  of  the  trial,2  and  the 
propriety  of  such  a  course  of  action  was  not  questioned 
until  the  rules  for  regulating  the  procedure  in  the  trial 
of  President  Johnson  were  under  discussion,  when  it 
was  objected  to,  on  the  ground  that  the  presence  of  the 
house  would  exert  an  undue  influence.3  The  rule  was, 
however,  adopted  as  usual,  and  the  house  not  only  at- 
tended during  the  trial,  as  in  former  cases,  but  also  ac- 
companied the  managers,  as  a  committee  of  the  whole 
on  the  state  of  the  union,  when  the  articles  of  impeach- 
ment were  presented,  though  their  attendance  at  that 
time  was  not  contemplated  by  the  rules. 

The  rules  adopted  at  the  first  trial  provided  for  the 
decision  with  closed  doors  of  all  questions  arising  in  the 
course  of  the  trial  ;4  and,  under  this  rule,  the  senate  had 
for  four  days  debated,  in  secret  session,  the  question  of 
jurisdiction.  At  the  next  trial  a  step  towards  publi- 
city was  taken  by  providing  for  the  retirement  of  the 
senate  to  an  adjoining  committee  room  for  consideration 

1  Annals  of  Congress,  5th  Congr.,  vol.  Ill,  p.  2564. 

2  In  the  trial  of  Peck  they  did  not  attend  all  the  time. 

3  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  p.  1595. 

4  Annals  of  Congress,  5th  Congr.,  vol.  II,  p.  2197. 


United  States  Senate.  171 

of  a  motion,  only  when  a  third  of  the  members  present 
required  it  ;T  and,  at  the  same  time,  it  was  agreed  to  ad- 
mit stenographers  to  the  trial.2  Finally,  at  the  trial  of 
Judge  Chase  everything  was  made  public,  it  being  pro- 
vided that  "  At  all  times  whilst  the  Senate  is  sitting 
upon  the  trial  of  an  impeachment  the  doors  of  the  Sen- 
ate Chamber  shall  be  kept  open."  The  rule  remained 
in  this  form  until  the  trial  of  President  Johnson,  when 
it  was  amended  by  the  addition  of  "  unless  the  Senate 
shall  direct  the  doors  to  be  closed  while  deliberating  up- 
on its  decisions."  3 

At  the  trial  of  Judge  Chase,  provision  was,  for  the 
first  time,  made  for  the  publication  of  the  proceedings  on 
the  trial.  Provision  was  also  made  at  the  same  time  for 
the  publication  of  the  proceedings  on  the  previous  trials.4 
A  proposal  made  at  the  trial  of  President  Johnson  for 
the  reporting  in  confidence  of  the  proceedings  in  secret 
session  was  negatived,  as  was  also  a  similar  proposition 
made  at  the  next  trial.5 

The  trial  of  President  Johnson  saw  the  adoption  of 
rules  for  the  limitation  of  debate.  Argument  on  all 
preliminary  questions  was  limited  to  one  hour  on  each 
side,6  and  the  final  argument  on  the  merits  of  the  ques- 
tion was  confined  to  two  persons  on  each  side.7  It  was 
also  provided  that,  when  the  doors  were  closed  for  delib- 
eration, no  member  should  speak  more  than  once  on  any 
one  question,  or  for  more  than  ten  minutes  on  an  intro- 
ductory question,  or  fifteen  on  the  final  question,  unless 
by  consent  of  the  senate  to  be  had  without  debate.8 

1  Annals  of  Congress,  ist  Sess.,  8th  Congr.,  p.  327. 

2  Sen.  Jour.,  vol.  Ill,  p.  503. 

3  Rule  19. 

4  Resolution  adopted  February  20,  1805. 

5  Congr.  Record,  ist  Sess.,  44th  Congr. ,  vol.  IV,  part  vii,  p.  73. 

6  Ibid.,  2d  Sess.,  44th  Congr.,  p.  1580,  Rule  20. 

7  Ibid.,  Rule  21. 

8  As  first  proposed,  the  rule   read  "  unless  by  unanimous  consent ;" 
but  this  was  so  strongly  objected  to  that  it  was  amended  so  as  to 
read  as  given. 


172  The  Origin  and  Development  of  the 

At  the  trial  of  President  Johnson,  the  chief  justice 
for  the  first  time  presiding,  questions  arose  as  to  the  ex- 
tent of  his  powers.  Though  some  had  held  that,  in  the 
trial  of  an  impeachment,  the  vice  president,  when  he 
presided,  had  a  right  to  vote  as  a  member,  he  had  never 
exercised  other  than  a  casting  vote.  The  same  claim 
was  made  for  the  chief  justice,  but  it  received  little  sup- 
port, and  a  motion  denying  his  right  to  a  casting  vote 
was  rejected  by  a  majority  of  six  only. 

Another  question  was  raised  by  the  fact  that  there 
was  no  vice  president,  the  question  being  whether,  in 
such  a  case,  the  president  pro  tempore  should  be  allowed 
to  vote  in  the  trial  of  the  president,  inasmuch  as  he  now 
stood  next  in  succession  to  the  presidency.  On  this 
ground  objection  was  made  to  his  taking  the  oath,  but, 
after  some  debate,  in  the  course  of  which  it  was  pointed 
out  that  the  president  pro  tempore  might  be  changed  at 
any  time  in  the  course  of  the  trial,  the  objection  was 
withdrawn.1 

1  Congr.  Globe,  2d  Sess.,  4oth  Congr.,  pp.  1675-1700. 


CHAPTER  VI. 


CONCLUSION. 

IN  the  development  of  the  senate,  three  loosely  de- 
fined periods  may  be  noted.  During  the  first  of  these, 
which  extended  over  about  thirty  years,  and  especially 
during  the  first  half  of  this  period,  the  house  was  the 
most  conspicuous  branch  of  the  legislature.1  While  the 
legislative  sessions  were  held  in  secret,  it  was  but  natural 
that  the  proceedings  of  the  senate  should  attract  less  at- 
tention than  those  of  the  house ;  and  that  it  was  still  so, 
even  after  the  opening  of  the  doors  of  the  senate,  may 
have  been  partly  due  to  the  force  of  habit ;  partly  to  the 
fact  that  the  house  represented  the  people  directly,  and 
was,  therefore,  more  popular ;  and  partly  to  the  business 
like  manner  of  conducting  legislation  in  the  senate, — due, 
doubtless,  to  the  small  number  of  senators  and  the  se- 
cret sessions, — which,  though  conducive  to  good  legisla- 
tion, did  not  attract  popular  attention.  The  lack  of  re- 
ports of  the  proceedings  of  the  senate  in  the  papers  of 
the  day,  even  after  the  legislative  sessions  of  the  senate 
were  made  public,  although  those  of  the  house  were 
quite  fully  reported,  would  also  have  its  influence. 
This  being  so,  the  house  was  naturally  the  place  in 
which  any  subject  was  introduced,  which  it  was  desired 
should  excite  attention,  and  create  an  impression  abroad. 
Thus  it  is  not  strange  that,  in  spite  of  the  executive  du- 
ties entrusted  to  the  senate,  and  the  longer  term  of  its 
members,  a  seat  in  the  house  was  sometimes  regarded  as 
equally  or  even  more  desirable  than  one  in  the  senate,2 

1  Morris  went  so  far  as  to  say  that  the  complete  sovereignty  of 
America  was  substantially  in  the  house.     (Life  of  Morris,  III,  pp.  185, 
186,  and  Diary,  II,  p.  528.) 

2  Madison,  Works,  I,  438. 


174  The  Origin  and  Development  of  the 

Thus  Clay  in  1811,  when  there  was  a  question  of  war, 
refused  to  be  a  candidate  for  re-election  to  the  senate 
that  he  might  get  into  the  house.1  Not  only  were  sena- 
tors occasionally  seen  resigning  their  seats  to  become 
state  governors,  as  at  present,  but  even  to  become  mayors 
of  large  cities,2  and  it  was  by  no  means  an  unusual 
thing  for  one  who  had  been  a  senator  to  be  elected  into 
the  house  of  representatives.3  In  1808  Story  wrote  that 
though  the  senate  was  ordinarily  composed  of  men  of 
ripe  years  and  respectable  appearance,  yet  the  house  was 
generally  greatly  superior  in  talents.4  On  the  other 
hand,  the  Pennsylvania  Packet,  speaking  of  the  First 
Congress,  said  :  "  Perhaps  a  more  truly  respectable  de1- 
egation  could  not  have  been  made,  than  appears  in 
the  Senate.  Many  of  them  are  men  eminently  con- 
spicuous for  their  abilities  and  political  knowledge. 
Eleven  of  them  were  members  of  the  Grand  Con- 
vention, and  were  in  favor  of  the  Constitution,  and 
they  are  all  men  in  whom  the  people  of  the  United 
States  can  place  entire  confidence  for  the  speedy  and  ac- 
tive operation  of  the  new  government  ;"5  and  John  Adams 
described  the  senate  during  his  presidency,  as  a  "  select 
council  of  statesmen,  true  to  their  duties,  not  ambitious 
of  logomachy,  and  not  making  their  honorable  station 
subsidiary  to  other  objects."6 

Most  of  the  senators  were  men  of  moderate  means,7 
and  some  of  them  were  rich  for  that  time,8  but  there 

1  Clay,  Works,  IV,  47- 

2  Otis,  in  1821,  to  become  mayor  of  Boston,  and  DeWitt  Clinton  to 
become  mayor  of  New  York. 

3  Webster,  Works,  III,  12. 

4  Life  of  Story,  I,  p.  158. 

5  Thursday,  March  I2th,  1789. 

6  John  Adams,  Works,  I,  571. 

7  A  Boston  paper  of  July  8,  1789,  says:  "Considering  that   Con- 
gressmen are  elected  from  amongst  the  wealthy,  for  their  abilities  and 
integrity,"  etc.     (Taken  from  the  Pennsylvania  Packet,  July  22,  1789. ) 

8  Life  of  J.  Smith,  p.  57. 


United  States  Senate.  175 

was  not  the  number  of  wealthy  men  which  is  to  be 
found  in  the  senate  now,  and  which  has  given  it  the 
name  of  "  The  Rich  Man's  Club." 

The  accusations  of  corruption,  which  were  made  even 
during  the  First  Congress,  are  by  no  means  proven. 
Hamilton,  who  was  most  frequently  accused  of  using 
improper  means  to  secure  his  majorities,  declared  that 
he  did  not  know  of  a  single  senator  who  could  properly 
be  called  a  stock  jobber  or  a  paper  dealer  ;  and  Madison 
says  that  the  accusation  of  bribery  in  1796  was  a  u  slan- 
derous assertion  ;  m  while  the  statement  of  Senator  Tay- 
lor, that  he  resigned  his  seat  in  congress  because  of  "  the 
extreme  corruption  of  Congress  and  the  President," 
aroused  much  indignation  from  his  brother  senators, 
who  thought  the  statement  unwarranted.2  That  there 
was  a  trading  of  votes  is  shown  by  the  way  in  which 
the  place  for  the  capitol  was  decided  iipon. 

The  senate  in  its  mode  of  conducting  business  was 
most  orderly  and  dignified.  A  Nova  Scotia  paper,  in 
1791,  said:  " There  is  but  one  assembly  in  the  whole 
range  of  the  Federal  Union  in  which  eloquence  is  deemed 
unnecessary,  and,  I  believe,  even  absurd  and  intrusive, 
— to-wit,  the  Senate,  or  Upper  House  of  Congress.  They 
are  merely  a  deliberative  meeting,  in  which  every  man 
delivers  his  concise  opinion,  one  leg  over  the  other,  as 
they  did  in  the  First  Congress,  where  an  harangue  was 
a  great  variety."3  The  rule,  adopted  in  the  First  Con- 
gress, and  still  found  among  the  rules  of  the  senate, 
which  provides  that :  "  No  member  shall  speak  to  another, 
or  otherwise  interrupt  the  business  of  the  Senate,  or 
read  any  printed  paper,  while  the  Journals  or  public  pa- 
pers are  reading,  or  when  any  Senator  is  speaking  in  any 

* 

1  Works,  II,  p.  71.      Letter  of  January  10,  1796. 

2  Ames,  I,  161. 

3  Taken  from  Sumner's  Works,  XIII,  191.     Occasionally,  however, 
it  would  seem  that  a  "harangue"  was  delivered  in  the  senate,  for 
Maclay  mentions  a  speech  which  lasted  two  days. 


176  The  Origin  and  Development  of  the 

debate,"1  was  not  then,  as  now,  a  dead  letter,  but  was 
carefully  observed.  Moreover,  the  senators  were  not 
then  accustomed  to  be  absent  from  the  senate  chamber 
during  a  large  part  of  the  day's  session  ;  and,  according 
to  a  rule  given  by  Mr.  Maclay,  a  senator  who  should 
withdraw  from  the  senate  chamber  for  more  than  a  quar- 
ter of  an  hour  after  a  quorum  was  formed,  would  be 
guilty  of  disorderly  conduct,  and  be  punished  in  the 
same  way  as  for  neglect  of  attendance  during  the  ses- 
sion.2 

During  the  latter  half  of  the  first  period  the  leg- 
islative importance  of  the  senate  was  gradually  increas- 
ing, and,  with  the  great  debate  over  the  Missouri  Com- 
promise, it  obtained  the  lead.  From  that  time  till  the 
civil  war,  the  struggle  between  the  North  and  South 
over  slavery  was  the  all  important  question  ;  and  this 
struggle  was,  for  the  most  part,  fought  out  in  the  senate, 
where,  owing  to  the  system  of  representation,  the  two 
sides  were  evenly  matched.  The  senate  thus  became 
the  center  of  interest  for  the  whole  country,  and  the 
place  where  most  of  the  important  measures  were  intro- 
duced, and  the  great  debates  took  place  which  have 
justly  gained  for  the  senate  a  world  wide  renown.  Sum- 
ner,  speaking  of  this  in  1869,  said:  "Without  neglect 
of  business  the  Senate  has  become  a  center  from  which 
to  address  the  country.  A  seat  here  is  a  lofty  pulpit 
with  a  mighty  sounding  board,  and  the  whole  wide- 
spread people  is  the  congregation."  3 

The  senate  was  still,  however,  remarkable  for  the 
closeness  of  its  debates,  and  the  brevity  of  its  discus- 
sions, and  was  to  be  distinguished  from  the  house  by 
reason  of  its  greater  decorum  and  dignity,  and  the  ease 
with  which  order  was 'preserved.4  Passions,  however, 

1  Rule  2. 

2  Journal  of  Maclay,  p.  xiv,  Rule  16. 

3  Sumner,  Works,  XIII,  p.  191. 

4  Exec.  Jour.,  V.  p.  4,  address  of  Vice  President  Johnson;  and  Ben- 
ton,  Thirty  Years'  View,  I,  206-208. 


United  States  Senate.  177 

sometimes  ran  high,  it  being  during  this  period  that  oc- 
curred in  the  senate  chamber  that  scene  between  Mr. 
Benton  and  Mr.  Foote,  in  which  the  latter  drew  a  pistol. 

Many  have  borne  witness  to  the  fact  that  at  this  time 
the  senate  occupied  the  first  place  in  the  government. 
Van  Buren  said  in  1823  that  the  senate,  more  than  any 
other  branch,  controlled  all  the  efficient  power  of  the  gov- 
ernment ;  and  Story,  who  wrote  in  1833,  said  of  the  sen- 
ate :  "  It  has  given  a  dignity,  a  solidity,  and  an  enlight- 
ened spirit  to  the  operations  of  government,  which  have 
maintained  respect  abroad  and  confidence  at  home."  ] 
Greeley,  in  1836,  said  that  the  senate  was  the  "  ablest 
body  of  its  numbers  on  earth  "  ;2  and  Richard  Johnson, 
a  few  years  later,  when  vice  president,  said  :  "  There  is 
not,  in  my  opinion,  upon  the  globe,  a  legislative  body 
more  respectable  and  more  exalted  in  character  than  the 
Senate  of  the  United  States."  3 

The  increased  importance  of  the  senate  is  also  shown 
by  the  way  in  which  a  seat  there  was  regarded.  Niles 
Register  for  1822,  says  :  u  A  place  in  the  Senate  of  the 
United  States,  in  point  of  honor  and  respectabilty,  is 
second  only  to  a  place  in  the  presidential:  chair  ;  "  4  and 
John  Brown  wrote  to  Clay  ten  years  later  that  he  would 
prefer  a  place  in  the  senate  to  any  within  the  reach  of 
American  ambition.5  The  highest  terms  of  praise  were 
made  use  of  in  regard  to  senators.  Webster,  in  1830, 
spoke  of  the  senate  as  a  "  Senate  of  equals,  of  men  of 
individual  honor  and  personal  character,  and  of  absolute 
independence,"  who  knew  no  master  and  acknowledged 
no  dictation  f  and  De  Tocqueville,  who  travelled  in 

1  Sec.  725. 

2  Recollections  of  a  Busy  Life,  p.  225. 

3  Exec.  Jour.,  V,  4;  Benton,  I,  208;  and  Niles  Register,  XXII,  274, 
for  similar  statements. 

4  Vol.  XXIX,  p.  241. 

*  Clay,  Works,  IV,  343. 

6  Webster,  Works,  III,  274. 


1 78  The  Origin  and  Development  of  the 

America  in  1834,  wrote  regarding  it :  "  Scarcely  an  in- 
dividual is  to  be  found  in  it,  who  does  not  recall  the 
idea  of  an  active  and  illustrious  career.  The  Senate  is 
composed  of  eloquent  advocates,  distinguished  generals, 
wise  magistrates,  and  statesmen  of  note,  whose  language 
would,  at  all  times,  do  honor  to  the  most  remarkable 
parliamentary  debates  of  Europe."  * 

During  the  second  period,  the  power  of  the  senate  in 
nominations  was  much  increased.  At  first  the  senate 
had,  in  the  main,  confined  itself  to  the  exercise  of  the 
powers,  granted  it  by  the  constitution,  of  advising  and 
consenting  to  the  nominations  made  by  the  president ; 
but,  in  the  second  period,  it  practically  obtained,  to  a 
great  extent,  the  power  of  nomination  as  well,  a  power 
which,  owing  to  the  great  increase  in  the  number  of  of- 
fices and  the  introduction  of  the  spoils  system,  had  come 
to  be  enormous.  The  civil  service  reform  limited  the 
power  of  the  senate  by  decreasing  the  number  of  offices 
which  it  could  control,  but,  except  for  that,  its  power 
now  is  as  great  as  ever. 

The  new  chamber,  twice  as  large  as  was  then  needed,2 
which  the  senate  moved  into  in  1859,  where  it  was  diffi- 
cult for  senators  to  make  themselves  heard,  and  the 
larger  number  of  senators  resulting  from  the  admission 
of  several  new  states  into  the  union,  made  the  sen- 
ate no  longer  so  well  fitted  for  a  debating  body 
where  the  great  leading  questions  of  the  day  could 
be  thoroughly  discussed,  and  thus  brought  before  the 
country.  This,  and  the  increase  in  the  number  and  diver- 
sity of  the  subjects  to  be  acted  upon  by  the  senate,  due  to 
the  growth  of  the  country,  and  the  increased  material  pros- 
perity which  followed  the  war,  has  contributed  largely  to 
make  the  senate  what  it  is  in  its  third  stage  of  develop- 
ment, when  it  has  become  more  like  the  house,  many  of 
whose  rules  and  practices  it  has  adopted. 

1  Democracy  in  America,  chap.  VIII. 

2  Surnner,  Works,  X,  497,  498. 


United  States  Senate.  179 

The  senate  has  not,  however,  adopted  those  strict 
rules  for  the  limitation  of  debate  which  are  in  force  in 
the  house,  and  it  still  remains  the  chief  debating  body, 
though  it  has  not  that  preeminence  in  this  respect  which 
it  enjoyed  in  the  second  period ;  its  long  debates,  which 
are  regarded  with  disfavor  by  the  people,  even  when 
their  object  is  not  to  delay  business,  having  contributed 
to  the  loss  of  public  esteem  which  the  senate  has  suf- 
fered. 

During  the  preceding  period  the  minority  was  frequent- 
ly charged  by  the  majority  with  factious  opposition  ;  but 
it  is  only  within  recent  years  that  minorities  have  not 
only  attempted,  by  all  sorts  of  factious  opposition,  to 
prevent  any  action  to  which  they  objected,  but  have 
boldly  declared  that  this  was  their  intention,  and  that 
they  had  a  right  so  to  do ;  and  have  followed  up  their 
declarations  with  sufficient  persistence  to  gain  their  ends. 

As  all  attempts  by  the  majority  in  such  instances  to 
change  the  rules  have  been  met  by  the  same  factious  oppo- 
sition, and  as,  when  the  immediate  necessity  for  a  change 
is  passed,  the  majority  has  not  shown  itself  eager  for  a 
change,  this  action  of  the  minority  has  not  led  to  the 
amendment  of  the  rules,  though  such  amendment  has 
been  loudly  demanded  by  the  country ;  and,  as  matters 
now  stand,  a  very  few  senators,  if  they  are  only  persist- 
ent and  not  too  scrupulous,  can  delay  indefinitely  the 
action  of  the  senate. 

The  fact  that  it  is  only  recently  that  the  opportunities 
for  factious  opposition,  offered  by  the  senate  rules,  have 
been  made  use  of,  though  the  rules  have  always  been  as  fa- 
vorable to  such  action  as  at  present,  would  suggest  that 
the  character  of  the  senate  had  degenerated.  Corrup- 
tion, indeed,  seems  to  exist  in  the  senate,  as  well  as  in 
every  other  department  of  government,  local,  state  and 
national ;  for  though  it  is  seldom  that  the  actual  sale 
of  a  vote  has  been  proven,  it  can  scarcely  be  doubted 


'i8o  The   United  States  Senate. 

that  indirect  means  of  bribery  are  often  employed.  A 
proposal  in  the  second  session  of  the  Thirty-eighth  Con- 
gress for  a  standing  committee  on  corruption,  brought 
out  the  startling  fact  that  many  reports  of  frauds  dis- 
covered by  committees  had  never  been  acted  upon.  That 
there  is  a  good  deal  of  corruption  would  also  appear 
from  the  numerous  proposals  for  its  prevention,  and  the 
discussions  which  these  have  called  forth.1 

The  number  of  rich  men  in  the  senate  has  increased, 
but  the  number  of  very  rich  ones  who  are  senators  only 
because  they  are  rich,  is  often  exaggerated.2 

If,  however,  it  is  acknowledged  that  there  is  more  cor- 
ruption than  formerly,  and  that  the  average  of  character 
of  senators  is  lower,  it  is  only  admitting  that  the  char- 
acter of  public  men  in  general  has  declined  ;  for  the 
senate  is  still  recruited  mainly  from  men  who  have  pre- 
viously held  some  state  or  United  States  office,  especially 
from  among  state  governors  and  United  States  represen- 
tatives, so  that  the  senate  is  largely  composed  of  the 
ablest  men  who  have  sat  in  the  house.  A  seat  in  the  sen- 
ate, is,  as  a  rule,  preferred  to  one  in  the  house,  and  the 
senate  still  remains  the  most  distinguished  branch  of  the 
legislature. 

1  One  of  the  proposals  most  frequently  made,  is  to  forbid  senators 
acting  as  attorneys  for  railroads. 

2  Thus  Jonathan  Chase  said,  in  1889,  that  fully  one-half  of  the  sen- 
ators were  men  of  small  or  no  means,  a  large  proportion  of  the  others 
were  men  of  moderate  means,  and  that  only  a  few  were  rich  men, 
while  there  were  but  three  or  four  who  possessed  great  estates.     (North 
American  Review,  vol.  148,  p.  50.)     See,  also,  Forum,  "  The  Senate 
in  the  Ivight  of  History." 


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STEVENS,  JOHN  AUSTIN,  Life  of  Albert  Gallatin.     Boston,  1884. 
STORY,  JOSEPH,  Life  and  Letters  of.     Ed.  by  William  W.  Story.     2 

vols.     Boston,  1851. 
STORY,  JOSEPH,  Commentaries  on  the  Constitution,  3d  edition,  2  vols. 

Boston,  1833. 

STORY,  WILLIAM.    (See  Story,  Joseph.) 
SUMNER,  CHARLES,  Memoirs  and  Letters  of.     15  vols.     Boston,  1870- 

1883. 
SUPPLEMENT  TO  REVISED  STATUTES.    (See  United  States.) 


184  List  of  Works  Cited. 

SUPREME  COURT.     (See  United  States.) 
TIMES,  New  York  Daily,  1860,  1861,  1869. 

TREATIES  AND  CONVENTIONS  between  the  United  States  and  Other 
Powers,  1776-1887.  Washington,  1889. 

TRIBUNE,  New  York  Semi- Weekly,  1861. 

UNITED  STATES,  Reports  of  the  Circuit  Court. 

UNITED  STATES,  Reports  of  the  Supreme  Court. 

UNITED  STATES,  Revised  Statutes,  2d  edition.     Washington,  1878. 

UNITED  STATES,  Statutes  at  Large,  1789-1887,  24  vols.     Washington. 

UNITED  STATES,  Supplement  to  the  Revised  Statutes  of.  Vol.  I, 
1874-1891.  Washington,  1891.  Vol.  II,  1892-1893.  Washington, 
1893- 

UPHAM,  CHARGES  W.     (See  Pickering,  Timothy.) 

WASHINGTON,  GEORGE,  Writings  of.  Ed.  by  Worthington  Chauncey 
Ford,  13  vols.  New  York  and  London,  1889. 

WASHINGTON,  W.  A.     (See  Jefferson,  Thomas. ) 

WEBSTER,  DANIEL,  The  Works  of.  Ed.  by  Jared  Sparks,  6  vols. 
Boston,  1851. 

WHEATON,  HENRY,  Elements  of  International  Law.  Ed.  by  Richard 
Henry  Dana,  8th  edition.  Boston,  1866. 

WILUAMS'S  Statesman's  Manual,  2  vols.     New  York,  1846. 

WINSOR,  JUSTIN,  editor  of  Narrative  and  Critical  History  of  the 
United  States,  8  vols.  Boston  and  New  York,  1887-89. 


INDEX. 


ABSENCE,  leave  of,  41-42. 

Absentees,  publication  of  names 
of,  in  Congressional  Globe,  43. 

Adams,  John,  election  of,  as  sena- 
tor, 19  ;  exclusion  from  the  cab- 
inet, 22,  23  ;  delivery  of  his  an- 
nual message,  85  ;  rule  suggest- 
ed by,  99 ;  waited  upon  by  a 
committee  of  the  senate,  107  ; 
refusal  to  meet  a  committee  of 
the  senate,  107 ;  on  soliciting 
nominations,  108  ;  nominations 
of,  rejected,  no;  on  the  en- 
croachment of  the  senate  on  the 
president's  power  in  nomina- 
tions, 1 10  ;  appointments  by',  to 
original  vacancies,  117;  on 'ten- 
ure of  office  bill  of  1820,  123  ; 
failure  of,  to  consult  senate  pre- 
vious to  the  negotiation  of  trea- 
ties, 140 ;  on  the  character  of 
senators,  174. 

Adams,  John  Quincy,  on  powers 
of  the  vice  president,  21  ;  on  the 
right  of  the  senate  to  publish 
confidential  communications 
from  the  president,  100 ;  refusal 
of  the  senate  to  act  on  certain 
of  the  nominations  of,  120-121  ; 
on  the  result  of  the  tenure  of 
office  act  of  1820,  124. 

Adjournment,  extending  the  date 

of,  52 ; 

Alabama  affair,  142. 

All  night  sessions,  67. 

Ambassadors,  appointment  of,  ac- 
cording to  Pinckney's  plan,  7, 
10. 

Amendments  proposed  to  the  con- 
stitution, 18,  20,  157. 

Anthony  rule,  54,  62-63  I  proposed 
amendment  of  the,  63  ;  decision 
of  the  vice  president  on  the,  63. 

Appointments,  methods  of  mak- 
ing, proposed,  9-11,  12  ;  opin- 
ions regarding  influence  of  the 
manner  of  making,  upon  there-  ' 
lations  of  president  and  senate, 
13  ;  under  the  United  States  con- 
stitution and  that  of  New  York 
state,  39  ;  to  original  vacancies, 
117  ;  to  original  statutory  offices, 


118-119;  to  vacancies  existing 
since  the  last  session,  120  ;  of 
special  agents  to  negotiate  trea- 
ties, 143-144.  See  Nominations. 
Appropriation  bills,  57-80  ;  origi- 
nation of,  7,  69-72  ;  amendment 
of,  by  the  senate,  7,  57-58,  71, 
74,  75,  76  ;  interest  on,  62  ;  rule 
allowing  amendment  to  be  laid 
on  the  table  without  the  bill,  62  ; 
debate  on,  limited  by  unanimous 
consent,  62  ;  consideration  of,  in 
the  senate  before  receipt  from 
the  house,  71-74  ;  origination  of, 
ceased  to  be  an  advantage,  71  ; 
number  of,  72-73  ;  reference  of, 
in  the  senate,  73  ;  time  of  receiv- 
ing, in  the  senate,  73-74  ;  effect 
of  delay  of,  on  the  senate  and 
house,  74-75  ;  private  claims 
added  to,  76-77  ;  rules  restrict- 
ing the  amendment  of,  77-78  ; 
general  legislation  on,  78-79  ; 
power  of  the  senate  on,  80,  112  ; 
rules  of  the  house  restricting 
general  legislation  on,  79-80  ; 
for  the  negotiation  of  a  treaty, 
142-143,  150-151,  152-153;  for 
Indian  treaties,  148  ;  for  execut- 
ing the  Jay  treaty,  150  ;  for  exe- 
cuting the  treaty  with  Russia, 

153- 
Aristocracy,  fear  of,  4  ;  fear  that 

senate  form  an,  14. 
Arthur,  Chester  A.,  recommenda- 

tion of  civil  service  reform  by, 

US- 
Articles  of  Confederation,  lack  of 

war  power  under   the  govern- 

ment of  the,  8. 
Attorney  Generals,   opinions    of, 


BANK,  United  States,  re-charter 
of,  84. 

Belknap,  W.  W.,  impeachment 
and  trial  of,  166-167. 

Bentoii,  Thomas  Hart,  on  senators 
asking  leave  of  absence,  42  ; 
on  '  '  pairing  off,  "  45  ;  on  use 
of  instructions,  84  ;  on  requir- 
ing the  president  to  give  his 


i86 


Index. 


reasons  for  a  removal,  125  ;  on 
claim  of  the  seifate  to  a  right  to 
consultation  in  the  negotiation 
of  treaties,  141  ;  scene  with  Mr. 
Foote,  177. 

Bills,  adversely  reported  by  a 
committee,  35-36 ;  passage  of, 
through  all  their  stages  in  one 
day,  50 ;  not  to  be  put  on  their 
passage  till  12  M.,  53 ;  intro- 
duction of,  54  ;  to  be  read  three 
times,  54-55  ;  setting  aside  a  spe- 
cial time  to  consider  special 
classes  of,  56.  See  Private  bills, 
Appropriation  bills,  Revenue 
bills. 

Blaiue,  James  G.,  on  the  effect  of 
the  senate  rules  restricting  leg- 
islation on  appropriation  bills, 
79-80. 

Bradford,  statement  of,  regarding 
caucuses,  82. 

Bright,  decision  on  the  right  of 
the  president  of  the  senate  to 
call  to  order,  22. 

Brown,  Senator  of  North  Caro- 
lina, resignation  of,  84. 

Blount,  William,  impeachment 
and  trial  of,  159-160;  expelled 
from  senate,  gives  bail,  169. 

Business,  increase  of,  35,  62-63  ; 
transaction  of,  38  ;  crowding  of, 
to  end  of  the  session,  49-52  ; 
unfinished,  58-59  ;  executive, 
when  considered,  59. 

Burr,  Aaron,  recommended  by 
caucus  for  minister  to  France, 
109. 

CABINET,  proposed  composition 
of,  22,  23,;  nomination  of  Madi- 
son for  the,  121  ;  organization, 
122  ;  nominations  to  the,  (see 
Nominations). 

Cabinet  Officers,  dictation  of,  by 
caucus,  82 ;  duties  of,  toward 
congress,  88  ;  responsible  only 
to  the  president,  88  ;  attendance 
of,  in  the  senate,  88-89  J  report 
in  favor  of  giving  seats  in  con- 
gress to,  89  ;  annual  reports  to 
congress  from,  90  ;  calls  by  con- 
gress for  special  reports  from, 
90  ;  calls  for  opinions  of,  91  ; 
removal  of,  128,  129 ;  term  of 
office  of,  129-130. 

Calendar,  consideration  of,  under 
the  Anthony  rule,  63. 


Calhoun,  John  C.,  decision  of,  on 
right  of  vice-president  to  call  to 
order,  21  ;  committees  appoint- 
ed by,  28  ;  on  debate  in  the  sen- 
ate, 60 ;  on  effect  of  tenure  of 
office  bill  of  1820,  124  ;  on  the 
reasons  for  the  rejection  of  a 
treaty,  156. 

California,  demand  of,  for  popu- 
lar election  of  senators,  20. 

Cameron,  Senator,  appointment 
of,  as  chairman,  33. 

Capitol,  residence  of  senators  at 
the,  14. 

Caucus,  first  use  of,  Si  ;  legisla- 
tive, 81-82  ;  committees  decided 
upon  in,  82  ;  attempt  of,  to  con- 
trol cabinet  officers,  82  ;  time  of 
meeting  and  influence  of,  83  ; 
suggests  Burr  for  minister  to 
France,  109. 

Chairman.     See  Committees. 

Chandler,  Senator,  resolution  of, 
against  negotiation  of  treaties 
by  special  agents,  144. 

Chase,  Samuel,  impeachment  and 
trial  of,  161-162  ;  a  Federalist, 
162  ;  publication  of  the  pro- 
ceedings on  the  trial  of,  171  ; 
trial  of,  in  open  session,  171. 

Chief  Justice  of  the  supreme 
court,  to  be  member  of  the 
president's  council,  22  ;  opinion 
of,  on  the  time  for  the  adoption 
of  the  rules  for  the  trial  of  im- 
peachments, 1 68  ;  on  the  time 
for  administering  the  oath  in 
the  trial  of  impeachments,  169  ; 
presided  at  the  trial  of  Presi- 
dent Johnson,  172  ;  right  of,  to 
a  casting  vote  when  he  presides, 
172. 

Circuit  Court,  decision  of,  regard- 
ing the  rights  of  the  house  in 
treaties,  157. 

Civil  Service  Commission,  crea- 
tion of,  114  ;  report  of,  114;  re- 
establishment  of,  115. 

Civil  Service  Reform,  checks  the 
use  of  patronage  to  control  leg- 
islation, 87;  first  movement  for, 
1 14 ;  adoption  and  failure  of, 
114;  obstacles  to,  114;  extent 
of,  115-116;  recommendations 
of,  by  the  presidents,  115  ;  sup- 
port of,  116;  limitation  of  the 
power  of  the  senate  in  nomina- 
tions by,  178. 

Civil  War,  94,  176. 


Index. 


187 


Clay,   Henry,   on   crowding  busi-  ' 
ness  to  the  end  of  the  session, 
50  ;  on  debate  in  the  senate,  60  ; 
proposal   of,    for    the    previous  j 
question,  65  ;   on  power  of  the 
president,  through  the  veto,  86  ; 
preference  of,  for  a  seat  in  the 
house,  174. 

Clay's  tariff  compromise,  intro- 
duction of,  in  the  senate  objected 
to,  71-72. 

Cleveland,  Grover,  use  of  the  veto  ! 
by,  87  ;  position  of,  on  removals, 

134,  135. 

Clock  ot  the  senate,  stopping  of 
the,  52. 

Colonies,  representation  of,  in  the 
continental  congress,  3. 

Committees,  26-37  ;  to  audit  and 
control  the  contingent  expenses 
of  the  senate,  26  ;  on  engrossed 
bills,  26 ;  number  of  standing 
committees,  26-27  ;  on  foreign 
relations,  judiciary,  post  offices 
and  post  roads,  pensions,  claims, 
District  of  Columbia,  Indian  af- 
faire, roads  and  canals,  com- 
merce, manufactures,  military  j 
affairs,  naval  affairs,  militia,  pub-  | 
lie  lands,  and  finance,  27  ;  choice 
of  the,  27-31,  36,  82  ;  choice  of 
chairman  of,  29,  30,  32  ;  same 
chairman  usually  retained,  33  ; 
British  practice  regarding  the 
composition  of  the,  31  ;  repre- 
sentation of  parties  on  the,  31-32  ; 
permanence  of  the,  33  ;  corrup- 
tion in  the  choice  of,  33  ;  meet- 
ing of  the,  33-34  ;  relation  of  the 
majority  and  minority  of,  34  ; 
number  of  members  on,  34  ; 
manner  of  work  of,  34-35  ;  re- 
ports of,  35  ;  may  sit  during  the 
recess,  35  ;  influence  of,  on  leg- 
islation, 35-36;  reference  of 
messages  of  the  president  to,  86  ; 
influence  of  the  departments  on 
the  senate  through,  91  ;  heads  of 
the  departments  summoned  to 
appear  before  the,  107. 

Committees  of  conference,  ap- 
pointment of,  36;  number  of 
members  of,  and  instruction  of, 
36 ;  reports  of,  36,  37  ;  powers 
of,  37  ;  number  of,  on  appropri- 
ation bills  in  the  early  days,  76 ; 
importance  of,  95. 

Committees,  joint,  on  the  library, 
25  ;  on  enrolled  bills,  26  ;  action 


of  congress  by,  94  ;  to  decide 
on  the  business  to  take  up  dur- 
ing the  rest  of  the  session,  94-95. 

Congress,  to  consist  of  two  houses, 
i  ;  representation  in,  3  ;  tardy 
attendance,  40-41  ;  reliance  of, 
on  Hamilton,  89  ;  calls  of,  for 
reports  from  the  departments, 
90 ;  power  of,  to  regulate  re- 
movals, 122  ;  quarrel  with  Presi- 
dentjohnson,  128  ;  abrogation  of 
treaties  by  law  of,  146-147  ;  laws 
of,  repealed  by  treaty  stipula- 
tions, 151  ;  right  of,  to  dispose 
of  the  territory  of  the  United 
States,  152  ;  acquisition  of  terri- 
tory by,  152  ;  corruption  of,  175. 

Conkling,  Roscoe,  election  of,  as 
senator,  19,  20;  resignation  of, 
112. 

Connecticut,  councillors  of,  how 
chosen,  2  ;  delegates  of,  urged 
one  year  for  term  of  senators,  5. 

Cooley,  Judge,  suggestions  for 
overcoming  the  resistance  of  the 
minority,  67. 

Continental  Congress,  representa- 
tion in,  3  ;  representatives  to,  in- 
structed, 83. 

Conventions,  amendment  pro- 
posed by,  of  North  Carolina  and 
Virginia,  9. 

Corruption,  of  senators,  19,  20;  in 
choice  of  committees,  33  ;  in 
all  departments,  179-180. 

Corwin,  minister  of  the  United 
States  to  Mexico,  142. 

Councillors,  how  appointed,  2  ; 
character  and  social  position  of, 
4  ;  objects  of  suspicion,  5. 

Councils,  of  the  colonies,  compo- 
sition of,  4. 

Council,  Executive,  to  confirm 
nominations,  12  ;  proposed  com- 
position of,  22. 

Courtesy  of  the  Senate,  103,  109, 
112. 

Crawford,  George  W.,  tenure  of 
office  bill  of  1820  drawn  by,  123. 

DEBATE,  reporting  of,  40  ;  amount 
of,  at  the  end  of  the  session,  50  ; 
limitations  of,  59-68,  179 ;  on 
motion  to  take  up,  prohibited, 
6 1  ;  limitation  of,  in  secret  ses- 
sion to  five  minutes  in  the  con- 
sideration of  subjects  relating  to 
the  rebellion,  61  ;  limitation  of, 
on  appropriation  bills  by  imani- 


188 


Index. 


mous  consent,  62  ;  in  the  trial 
of  impeachments,  171. 

Delaware,  instructions  of  delegates 
from,  3. 

Democrat,  the  secretary  of  the 
senate  a,  26. 

Democrats,  in  the  majority  in  the 
senate,  25,  26,  165  ;  number  of, 
holding  senate  offices,  26 ;  cau- 
cus of,  109. 

Denmark,  abrogation  of  treaty  | 
with,  146 ;  treaty  with,  147. 

Departments,  Heads  of.  See  Cabi- 
net Officers. 

De  Tocqueville,  on  the  character 
of  the  senate,  77-78. 

Dickinson,  John,  on  the  method 
of  representation  in  the  two 
houses,  3,  4. 

Doorkeeper,  term  of  office  of  the, 
25- 

ECUADOR,  appointment  of  charge" 
d'affaires  to  negotiate  a  treaty 
with,  143-144. 

Edmunds,  Senator,  on  the  object 
of  a  rule  limiting  debate,  61. 

Election  laws,  attempt  to  repeal, 

65- 

Ellsworth,  Oliver,  on  power  of  re- 
moval, 123. 

Evarts,  Attorney  General,  on  ap- 
pointments to  original  statutory 
vacancies,  119. 

Executive,  choice  of  state,  12  ; 
appointment  of  senators  by 
state,  1 6,  17.  See  President. 

Emory,  General,  164. 

FACTIOUS  opposition,  61,  64-67. 

Federalist,  The,  quotation  from, 
13,  14  ;  statement  from,  39. 

Federalists,  majority  of,  in  the 
senate,  no  ;  vote  of,  on  im- 
peachment of  Pickering,  161. 

Fillmore,  Millard,  on  right  of  the 
president  of  the  senate  to  call 
to  order,  22. 

Force  bill,  66. 

Foreign  Affairs,  Secretary  of,  at- 
tendance in  the  senate,  88  ;  head 
of  the  cabinet,  89. 

Foote,  Senator,  scene  with  Sena- 
tor Benton,  177. 

Forsyth,  Senator,  on  the  useless- 
ness  of  secret  sessions,  101. 

France,  abrogation  of  treaty  with, 
146 ;  failure  of,  to  execute  a 
treaty,  158. 


Franklin,  Benjamin,  compromise 
urged  by,  4. 

GADSDEN  treaty,  153. 

Gallatin  Albert,  election  of,  as 
senator,  19  ;  influence  of,  on  leg- 
islation, when  secretary  of  treas- 
ury, 89  ;  nomination  of,  as  sec- 
retary, J2I. 

Garfield,  James  A,  death  of,  115  ; 
urges  repeal  of  tenure  of  office 
act  of  1867,  133. 

Germanic  Zollverein,  treaty  with, 

155- 
Georgia,  I  ;  seats  of  senators  from, 

38. 

Gerry,  Elbridge,  on  responsibility 
of  the  president  in  nominations, 
ii  ;  on  making  the  vice-presi- 
dent president  of  the  senate,  n. 

Grant,  Ulysses,  on  civil  service 
reform,  115  ;  recommends  repeal 
of  tenure  of  office  act  of  1867, 
133  ;  previous  consultation  of 
the  senate  regarding  treaties  by, 
142. 

Gore,  Senator,  on  appointments 
to  original  statutory  vacancies, 
118. 

Great  Britain,  treaty  with,  139, 
141,  142,  151,  157  ;  abrogation 
of  treaty  with,  146 ;  proposal 
for  abolition  of  certain  articles 
of  a  treaty  with,  147  ;  attempt 
of  Blount  to  organize  an  expedi- 
tion to  transfer  certain  of  the 
territories  of  Spain  to,  159. 

Greeley,  Horace,  on  character  of 
the  senate,  177. 

Gotham,  N.,  proposed  rotation  for 
senators,  5  ;  proposal  of,  for  the 
appointment  of  judges,  10. 

Governor.     See  Executive. 

HAI,E,  Senator,  on  crowding  busi- 
ness to  the  end  of  the  session, 

50-5.1. 

Hamlin,  Senator,  on  the  impor- 
tance of  committees,  35. 

Hamilton,  Alexander,  plan  of,  for 
election  of  members  of  the  up- 
per house,  2 ;  proposes  life 
tenure  for  senators,  4  ;  powers 
given  senate  by  plan  of,  7,  8  ; 
plan  of,  for  making  appoint- 
ments. 9,  10  ;  on  the  power  of 
the  senate,  13,  14  ;  on  effect  of 
the  manner  of  choosing  sena- 
tors, 18  ;  on  mode  of  appoint- 


Index. 


189 


inent  adopted  by  the  constitu- 
tion, 39  ;  manner  of  making  his 
report,  88 ;  influence  of,  in  con- 
gress, when  secretary  of  the 
treasury,  89  ;  reports  of,  as  sec- 
retary of  the  treasury,  90  ;  on 
agency  of  the  senate  in  appoint- 
ments, 108-109  ;  leader  of  the 
Federalists,  1 10  ;  advice  of,  re- 
garding appointments  to  origi- 
nal vacancies,  117  ;  on  the  cor- 
ruption of  senators,  175. 

Harper,  letter  of,  to  senate,  160- 
161  ;  hearing  of,  by  the  senate, 
161. 

Harper's    Weekly^   statement   of, 

20. 

Hawaii,  treaty  of  1875  with,  157. 

Hayes,  Rutherford  B.,  urges  civil  j 
service   reform,    115;    urges  re- 
peal of  the  tenure  of  office  act 
of  1867,  133. 

Hoar,  Senator,  on  advantage  of 
introduction  of  appropriation  I 
bills,  71  ;  resolution  introduced  j 

by,  93- 

Hornblower,  rejection  of  nomiua-  | 
tiou  of,  112. 

House  of  Representatives,  reasons  ! 
for  giving  to,  choice  of  presi-  ; 
dent,  when  tie  or  no  one  a  ma-  j 
jority,  12  ;  opinions  as  to  the  | 
relative  powers  of  the,  and  sen-  i 
ate,  13;  resolution  of,  for) 
amendment  providing  for  the 
direct  election  of  senators,  20  ;  ! 
rule  of,  for  preserving  order,  22;  j 
rules  of,  regarding:  legislation  i 
on  appropriation  bills,  73-75,  79;  i 
position  of,  on  the  right  of  the  j 
senate  to  introduce  a  bill  for  the  i 
repeal  of  a  revenue  law,  72  ;  re-  | 
lation  of  house  to  senate  in  j 
legislation,  92-97  ;  iudepend-  i 
ence  of  the  senate,  93-94  ;  mini-  | 
ber  of  bills  introduced  in  the,  j 
95-96,  173  ;  number  of  house  j 
bills  that  become  laws,  95-96  ; 
most  important  measures  intro- 
duced in  the  house  at  first,  95, 
173  ;  preference  given  to  bills  of 
the,  97  ;  rights  of,  in  treaties ' 
stipulating  for  the  payment  of  j 
money,  148-155.  157-158  ;  rights  j 
of,  in  the  acquisition  of  terri- 1 
tory,  151-155  ;  rights  of,  in  com- 1 
mercial  treaties,  155-157 ;  at-  j 
tendance  of,  at  the  trial  of  im- 
peachments, 170;  reports  ofj 


proceedings  of  the  house  in  the 
papers,  173  ;  preference  of  a 
seat  in  the  house  to  one  in  the 
senate,  173-174. 

Humphries,  West  H.,  impeach- 
ment and  trial  of,  163. 

IMPEACHMENTS,  9 ;  reasons  for 
giving  to  the  senate  the  trial  of, 
9  ;  power  of  the  senate  to  try, 
make  the  president  dependent 
on  it,  13  ;  the  only  remedy  for 
abuse  of  the  power  of  removal, 
126  ;  trials  of,  159-172  ;  offences 
for  which  an,  lies,  159-160  ;  ef- 
fect of  resignation  on  amena- 
bility to,  166-167 ;  importance 
of  first  and  second  trials  of,  167; 
rules  for  the  trial  of,  167-168  ; 
mode  of  procedure  in  the  trial 
of,  168,  169  ;  time  of  organizing 
the  senate  as  a  court  for  the 
trial  of,  168;  presence  of  the 
house,  170;  secret  sessions,  170- 
171  ;  publication  of  proceedings, 
171  ;  limitation  of  debate,  171  ; 
admittance  of  stenographers, 
171  ;  right  of  chief  justice  to  a 
casting  vote,  172  ;  right  of  the 
president  pro  tent  pore  to  vote 
in  the  trial  of  president  when 
there  is  no  vice  president,  172. 

Indians,  attempt  of  Blount  to  ex- 
cite, against  the  United  States, 
159;  treaties  with,  (see  Treaties). 

Ingalls,  Senator,  on  general  legis- 
lation on  appropriation  bills,  80. 

Instructions,  of  the  delegates  from 
Delaware  to  the  convention,  3  ; 
of  Virginia  to  Mr.  Lee,  40  ;  dis- 
cussion in  the  convention  over, 

83  ;  sent  to  the  representatives 
in  the  continental  congress,  83  ; 
debate  over,  in  the  senate,  83- 

84  ;  opinions  regarding  the  force 
of,  83,  84,  85  ;  form  of,  and  sub- 
jects for  which  used,  84  ;  use  of, 

85- 

Iowa,  demand  ot,  for  popular  elec- 
tion of  senators,  20. 

Izard,  Senator,  92. 

JACKSON,  Andrew^,  expunging  of 
the  resolution  censuring,  68  ;  use 
of  veto  by,  86  ;  use  of  patronage 
to  control  legislation,  87  ;  nomi- 
nations of,  in  ;  removals  made 
by,  123  ;  on  the  right  of  the 
president  to  make  removals,  127; 


i  go 


Index. 


consultation  of  the  senate  by,  i 
previous  to  the  negotiation  of  a  I 
treaty,  140. 

Jay,  John,  advice  of,  regarding  ap-  j 
pointments  to  original  vacan- 
cies, 117;  treaty  negotiated  by, 
42  ;  injunction  of  secrecy  on, 
135  ;  action  of  the  house  on, 
149-150. 

Jefferson,  Thomas,  on  the  compo- 
sition of  the  committees,  31  ;  on 
the  morning  hour,  53  ;  on  use  of  | 
the  previous  question,  59-60  ;  on 
intensity   of   party  feeling,  81  ;  I 
on    Hamilton's   influence    over 
congress.  90  ;  waited  upon  by  a 
committee  of  the   senate,    107  ;  ; 
surprise  at  the  rejection  of  Short, 
108 ;    nominations  of,   no;    the; 
leader  of  his  party,   no;  influ-  j 
ence  of  the  senate  on  the  nomi- 
nations of,    in;    appointments1 
of,    to   original   vacancies,  117  ; 
cabinet  nominations  of,  121  ;  re- 
movals made  by,   123  ;    on  the 
tenure  of  office  bill  of  1820,  124  ;  i 
idea  of,  on  removals,  125  ;  posi-  j 
tiou  of,   regarding  the  share  of 
the  house  in  treaties,    150-151  ; 
on  the  power  to  acquire  or  cede 
territory,  151. 

Johns,  Kensey,  the  appointment 
of,  1 6. 

Johnson,  Andrew,  use  of  veto  by,  j 
87 ;    quarrel  of,    with   congress, 
128  ;  renominations  of,  128  ;  re-  ' 
movals    of,     128;     removal     of! 
Stanton    by,    130-131  ;   nomina-  , 
tion   made  by,  for  secretary  of! 
war,    131  ;    consultation   of   the 
senate  bv,  previous  to  the  nego- 
tiation of  a  treaty,  142  ;  impeach- 
ment   and     trial     of,     163-166  ; 
adoption  of  rules  for  the  trial  of, 
108  ;  attendance  of  the  house  at  j 
the  trial  of,   170;   limitation  ofj 
debate  at  the  trial  of,  171  ;  trial 
of,  presided  over  by  the   chief 
justice,  172. 

Johnson,  Richard,  on  the  charac- 
ter of  the  senate,  177. 

Journals,  publication  of,  98. 

Journals,  Executive,  extracts  from,  j 
97  ;  secrecy  of,  99. 

Judges,  appointment  of,  in  the  j 
Randolph  plan,  9  ;  in  the  Pinck-  i 
ney  plan,  10. 

Judiciary,  national,  to  try  itn-  j 
peachments,  9. 


KENT,  James,  on  the  power  of  the 
senate  in  nominations,  in. 

King,  Senator,  term  of  service  in 
the  senate,  31  ;  on  the  composi- 
tion of  the  committees,  31  ;  on 
the  appearance  of  the  senate  at 
the  end  of  a  session,  53. 

Knox,  General,  attendance  in  the 
senate,  88,  89 ;  accompanies 
Washington  to  the  senate,  138. 

LOUISIANA,  purchase  of,  150. 
Lower  Branch,    representation   in 

the.  3. 
Legislature,    national,    to  appoint 

judges  according  to  Randolph's 

plan,  9;  to  choose  president,  11. 
Legislatures,    state,    proposal     to 

refer  certain  appointments  to,  10. 
Legislature  of  Virginia,  resolution 

of,    for  the  abolition   of  secret 

sessions,  40. 
Lincoln,  Abraham,  consultation  of 

the  senate  by,  previous  to  the 

negotiation  of  a  treaty,  142. 

MACLAY,  William,  rule  of,  regard- 
ing the  chairman  of  a  com- 
mittee, 32  ;  rule  of,  regarding 
absences,  41,  176;  on  crowding 
business  to  the  end  of  the  ses- 
sion, 49  ;  on  secrecy  of  legisla- 
tive business,  98  ;  account  by, 
of  meeting  of  Washington  and 
the  senate  to  negotiate  a  treat}-, 

I3?-I39- 

Madison,  James,  on  origination  of 
appropriation  bills,  7  ;  proposal 
of,  regarding  appointments.  10  ; 
on  the  relative  powers  of  the 
president  and  senate  under 
the  constitution,  13  ;  on  delay  in 
meeting  of  the  First  Congress, 
41  ;  waited  upon  by  a  commit- 
tee of  the  senate,  107  ;  refusal 
of,  to  meet  a  committee  of  the 
senate,  108  ;  member  of  a  com- 
mittee to  wait  upon  the  presi- 
dent, 109  ;  nominations  of,  re- 
jected, in  ;  influence  of  the 
senate  on  nominations  of,  in  ; 
appointments  by,  to  original  va- 
cancies, 117  ;  on  the  use  of  spe- 
cial agents,  118;  on  appoint- 
ments during  the  recess  to  va- 
cancies occurring  during  the 
previous  session,  120  ;  cabinet 
nominations  of,  121  ;  on  tenure 
of  office  bill  of  1820,  124 ;  on 


Index. 


191 


the  claim  of  the  senate  to  pre- 
vious consultation  in  the  nego- 
tiation of  a  treaty,  141  ;  on  cor- 
ruption of  senators,  175. 
Martin,  Luther,  on  the  relation  of 
the  president  and  senate  under 
the  constitution,  13. 
Maryland,  senators  of,how  chosen. 
2  ;    votes   against  two   senators 
from  each  state,  6. 
Mason,  Attorney  General,  on  ap- 
pointments to  original  statutory 
vacancies  during  the  recess,  119. 
Mason,  George,  on  forbidding  the 
senate   to   originate    appropria- 
tion bills,  8 ;   on   an   executive 
council,   12  ;    on  the  effect  of  a 
coalition   of  the   president   and 
senate,  13. 

Massachusetts,  councillors  of,  how 
chosen,  2  ;  appointments  in,  10  ; 
election  of  senators  of,  19. 
Messages.    See  President. 
Mexico,   consultation  of  the  sen-  ; 
ate  regarding  a  treaty  with,  142  ;  i 
negotiation    of   a  treaty    with,  i 
1 52-i 53  ;    treaty   of  1803   with,  | 
157. 

Minority,  representation  of,  on  I 
committees,  32  ;  relation  of  the  ! 
minority  of  a  committee  to  the  | 
majority,  34  ;  factious  opposi-  \ 
tionof  the,  61,  64-65,  66,  67, 179;  i 
restraint  of  the  rules  for  the  lim-  I 
itation  of  debate  upon  the,  64  ;  i 
attempt  of,  to  control  the  order  i 
of  business,  66  ;  given  all  the  j 
time  for  speaking  in  the  all  j 
night  session,  68. 
Missouri,  joint  committee  on  the 

admission  of,  94, 
Missouri  Compromise, debate  over, 

176. 

Monroe,    James,     member    of   a 
committee    to    wait    upon    the 
president,   109;  appointed  min- 
ister  to    France,    no  ;    on    ap   I 
pointments,    during  the  recess,  I 
to   vacancies   occurring  in    the  j 
previous  session,    120;   cabinet  j 
nominations   of,    121  ;    military  j 
nominations  of,  126. 
Morgan,  Senator,  on  the  power  of 
the  senate  in  the  negotiation  of ! 
treaties,  145. 

Morris,  Gouverneur,  011  the  choice  j 
of  senators,  2  ;  on  the  means  oft 
making  the  senate  a  check  on  j 
the  house,  4 ;  on  the  cornposi-  | 


tion  of  the  senate,  4  ;  proposes 
a  life  tenure  for  senators,  4  ; 
favored  three  senators  from  each 
state,  6  ;  on  results  of  making 
the  vice  president  president  of 
the  senate,  n  ;  on  the  mode  of 
appointment  adopted  by  the 
constitution,  n  ;  unpopularity 
of,  with  the  Republicans,  109. 

Nation,  The,  on  the  power  of  the 
senate  in  the  negotiation  of 
treaties,  145. 

National  Intelligencer,  on  the 
right  of  the  governor  to  appoint 
a  senator  in  anticipation  of  a 
vacancy,  17. 

Nebraska,  resignation  of  the  sena- 
tor of,  19. 

New  Kngland,  delegates  of,  urged 
one  year  for  the  term  of  sena- 
tors, 5. 

New  Hampshire,  seats  of  senators 
of,  38. 

New  Jersey,  delegates  of,  for  a  leg- 
islature of  one  branch,  i  ;  elec- 
tion of  senator  of,  by  a  plurality 
vote,  15. 

New  York  (city),  meeting  of  the 
First  Congress  at,  38. 

New  York  (state),  amendment  pro- 
posed by  the  convention  of,  14  ; 
appointments  under  the  consti- 
tution of,  39  ;  patronage  of,  112. 

Niles  Register,  on  the  importance 
of  a  seat  in  the  senate,  177. 

Nominations,  to  be  confirmed  by 
the  senate,  according  to  Hamil- 
ton's plan,  7  ;  secrecy  on,  100- 
101  ;  104-122  ;  manner  of  voting 
on,  104-105  ;  mode  of  communi- 
cation between  the  president  and 
senate  on,  104-106,  107-108  ; 
mode  of  considering,  104,  107, 
134  ;  rejection  of,  of  Washing- 
ton, 107,  109  ;  influence  of  the 
senate  on,  108-109,  no,  in,  112, 
114,  128,  178;  limitation  by  the 
senate  of  the  president's  power 
in,  110-114,  120-12 1  ;  increase 
in  the  number  of,  to  be  made, 
113;  for  the  cabinet,  121-122. 
See  Appointments. 

Nominee,  provision  for  giving  to 
a,  opportunity  to  defend  him- 
self, IOT. 

North  Carolina,  convention  of, 
amendment  proposed  by  the,  9. 

Nova    Scotia,    quotation    from    a 


192 


Index. 


paper  of,  on  the  mode  of  con- 
ducting business  in  the  senate, 
175- 

OFFICE,  limitation  of  tenure  of 
office,  123-125,  127,  128-135. 

Officers  of  the  senate,  how  chosen, 
ii  ;  term  of,  25-26;  attempt  to 
change  the,  65. 

Oregon,  treaty  for  settlement  of 
the  controversy  over,  141. 

Oregon  bill,  attempt  to  fix  a  time 
for  taking  the  vote  on  the,  64. 

Original  vacancies.  See  Appoint- 
ments. 

Otis,  James,  motion  of,  in  general 
court  of  Massachusetts  for  public 
sessions,  39. 

Ottoman  Porte,  treaty  with  the, 
117. 

"PAIRING  OFF,"  growth  of  cus- 
tom, 45  ;  use  of,  45,  46. 

Papers,  reports  of  the  proceedings 
of  the  senate  and  house  in  the, 
40,  173- 

Parties,  influence  of,  on  the  elec- 
tion of  senators,  18,  19  ;  in  the 
senate,  22 ;  influence  of,  on 
senate  officers,  25-26  ;  represen- 
tation of,  on  the  committess, 
30-32,  33;  influence  of,  in  the 
senate,  80-85  ;  intensity  of,  pas- 
sions, 8r.  See  Caucus. 

Patronage,  use  of,  to  control  sena- 
torial elections,  20 ;  to  control 
legislation,  86,  87. 

Peck,  James,  impeachment  and 
trial  of,  162-163. 

Peckham,  rejection  of  nomination 
of,  112. 

Pennsylvania  composition  of  col- 
onial and  state  legislatures  of,  i ; 
election  of  senators  of,  19. 

Pennsylvania  Packet,  on  the  char- 
acter of  the  first  senate,  174. 

Peru,  amendments  made  by  the 
president  to  the  treaty  with,  145. 

Philips,  Samuel,  decision  in  the 
case  of,  16,  17. 

Pickering,  John,  impeachment 
and  trial  of,  160-161,  169 ;  in- 
sanity of,  160-161. 

Pickering,  Timothy,  election  of, 
as  senator,  19. 

Piuckney,  Charles,  suggested  ro- 
tation of  senators,  5  ;  plan  of,  pro- 
vides for  two  houses,  i  ;  plan  of, 


for  election  of  the  members  of 
the  upper  house,  2 ;  powers 
given  to  the  senate  by  plan  of, 
8 ;  plan  of,  for  the  trial  of  im- 
peachments, 9 ;  for  appoint- 
ments, 9,  10  ;  not  bidden  to  a 
caucus,  81. 

Platt,  Senator,  resignation  of,  112. 

Polk,  James  K.,  consultation  of 
the  senate  by,  prior  to  the  nego- 
tiation of  a  treaty,  141  ;  requests 
an  appropriation  for  the  nego- 
tiation of  a  treaty  with  Mexico, 

152-153- 

Pomeroy,  John,  on  the  rights  of 
congress  in  carrying  treaties 
into  effect,  158. 

Postmasters,  appointment  of,  113. 

Presidency,  succession  to,  23,  25. 

President,  to  be  tried  on  impeach- 
ment by  the  senate,  9  ;  power 
in  appointments  proposed  to  be 
given  to  the  president,  ID;  to 
be  chosen  by  the  national  legis- 
lature, ii  ;  by  electors,  12  ; 
opinions  as  to  the  relative 
powers  of  the  president  and 
senate  under  the  constitution, 
13  ;  authorized  means  of  influ- 
ence on  legislation,  85  ;  relation 
of  president  and  senate  in  legis- 
lation, 86-92  ;  messages  of  the, 
85-86 ;  sources  of  influence  of 
the  president,  86;  influence  on 
legislation  through  the  use  of 
the  veto,  86-88  ;  influence  exer- 
cised through  the  departments, 
88,  89 ;  titles  for  the,  92  ;  rule 
imposing  secrecy  on  the  confi- 
dential communications  of  the, 
99  ;  right  of  the  senate  to  pub- 
lish the  confidential  communi- 
cations of  the,  100  ;  waited  upon 
by  a  committee,,  107-108  ;  power 
of,  in  appointments,  108,  112, 
123;  relation  of,  to  the  senate 
in  nominations,  114;  power  of 
the,  to  use  special  agents,  117- 
118  ;  to  fill  vacancies  during  the 
recess,  116;  to  appoint  to  origi- 
nal vacancies,  117;  to  original 
statutory  vacancies,  118-119;  to 
fill,  during  the  recess,  vacan- 
cies which  had  occurred  during 
the  previous  session,  120;  to 
fill  vacancies  created  during  the 
recess  by  removals,  1 20  ;  limita- 
tion by  the  senate  of  the  pow- 
er of  the,  in  nominations,  120- 


Index. 


193 


121  ;  power  of,  to  make  re- 
movals, 122,  123,  126.  127,  128- 
129,  132-133,  134;  abuse  of  the 
power  of  removal,  123  ;  effect  of 
the  tenure  of  office  act  of  1867 
on  the  power  of,  124;  calls 
upon,  for  the  reasons  of  re- 
movals, 125,  127 ;  proposal  to 
require,  to  give  reasons  for  his 
removals,  125;  right  of,  to 
amend  or  reject  a  treaty,  145  ; 
corruption  of,  175. 

President  pro  tempore  of  the  sen- 
ate, choice  of,  ir,  24;  impor- 
tance of,  20  ;  in  succession  to 
presidency,  23  ;  power  of,  to  ap- 
point member  to  take  the  chair, 
23-24 ;  tenure  of  office  of,  23, 
24-25  ;  removal  of,  25  ;  appoint- 
ment of  standing  committees 
by,  29,  30;  right  of,  to  vote 
in  the  trial  of  the  president 
when  there  is  no  vice  president, 
172. 

President  of  the  senate.  See  Vice 
President. 

Previous  question,  use  of,  59-60  ; 
opposition  to,  61. 

Private  bills,  at  the  end  of  the 
session,  50  ;  special  days  set 
aside  for,  56  ;  re-introduction  of, 
57  ;  reference  to  court  of  claims, 
57  ;  tacking  of,  to  appropriation 
bills,  57,  77  ;  number  of,  58. 

Property,  to  be  the  basis  of  repre- 
sentation in  congress,  3. 

Property  qualification  for  sena- 
tors, 5. 

QUORUM  of  the  senate,  40-48 ; 
rule  for  maintaining  a  quorum, 
42  ;  attempt  to  keep  a,  by  de- 
duction from  salary  for  absences, 
43-44  ;  what  constitutes  a,  44- 
45  ;  means  of  breaking  a,  45  ; 
effect  of  "pairing  off"  on  a, 
46 ;  refusal  of  senators  to  vote 
in  order  to  break,  46-48  ;  busi- 
ness done  without  a,  48. 

RANDOLPH,  plan  of,  provides  for 
two  houses,  i  ;  powers  given  to 
the  senate  by  plan  of,  7  ;  plan 
of,  for  trial  of  impeachments, 
9  ;  for  appointments,  9. 

Rawle,  William,  on  amenability  of 
members  of  congress  to  im- 
peachment, 1 60. 

Reed,  Speaker,  decision  of,  80. 


Removals,  122-135 ;  opinions  re- 
garding the  power  to  make,  122, 
123,  126  ;  calls  upon  the  presi- 
dent to  give  his  reasons  for  mak- 
ing, 125,  126,  127;  report  of  a 
senate  committee  on  the  right  of 
the  president  to  make,  127.  See 
Tenure  of  Office  Acts. 

Re-nominations,  made  by  Jackson 
and  Tyler,  in  ;  by  Johnson, 
128  ;  restriction  of,  129. 

Representation,  in  the  continental 
congress,  3  ;  in  congress,  3,  4 ; 
of  the  states  in  the  senate,  7. 

Representatives,  provision  of  the 
constitution  regarding  election 
of,  15  ;  attempts  of,  to  obtain 
nominations,  18. 

Republicans,  majority  of,  in  the 
senate,  25,  65  ;  criticism  of  acts 
of,  by  Chase,  161  ;  opinions  of 
certain,  on  the  impeachment  of 
Johnson,  165. 

Revenue  bills,  to  originate  in  the 
house,  7  ;  to  be  amended  by  the 
senate,  8  ;  fixing,  by  unanimous 
consent,  the  time  for  taking  a 
vote  on,  64 ;  are  bills  reducing 
revenue,  71-72. 

Rhode  Island,  councillors  of,  how 
chosen,  2  ;  purchase  of  votes  for 
senator  of,  20. 

Rotation  of  senators,  5. 

Rules  (of  the  house  of  representa- 
tives), for  the  preservation  of 
order,  22  ;  on  reporting  of  appro- 
priation bills,  73-75 ;  restricting 
legislation  on  appropriation  bills, 
79.  80. 

Rules  (of  the  senate),  proposals  for 
amendment  of  the,  21,  22,  179  ; 
for  preserving  order,  22,  175  ;  for 
filling  the  chair,  23 ;  for  the 
choice  of  the  committees,  26,  27  ; 
suspension  of  the,  29-31  ;  regu- 
lating absences,  41  ;  for  main- 
taining a  quorum,  42-43  ;  requir- 
ing a  senator  to  vote,  46  ;  pro- 
posed, to  prevent  hurry  at  the 
end,  50 ;  on  the  order  of  busi- 
ness, 53-54  ;  on  the  introduction 
of  bills,  54  :  on  unfinished  busi- 
ness, 55,  58,  59 ;  restricting  the 
re-introduction  of  private  claims, 
57  ;  forbidding  putting  private 
claims  on  appropriation  bills, 
57-58  ;  for  the  limitation  of  de- 
bate, 59,  60,  61,  62,  63  ;  failure 
of  attempts  to  change  the,  67  ; 


194 


Index. 


regulating  the  sending  of  appro-  [ 
priation  bills,  70  ;  restricting  the 
amendment     o  f    appropriation 
bills,  77,  78  ;  imposing  secrecy, 
99  ;  on  nominations,  10,  100  ;  to 
give  a  nominee  an  opportunity 
to  defend  himself,   101  ;  impos- 
ing a  penalty  for  the  disclosure  | 
of  confidential  documents,  102  ;  ! 
regulating  the  mode  of  commu- 
nication on   nominations,    105  ; 
on  the  reference  of  nominations 
to  a  committee,  107  ;  imposing  \ 
secrecy    on    nominations,    135- 1 
136  ;    for  the  trial  of  impeach- 
ments, 167-169. 

Rules,  of  Maclay,  32,  38,  41,  48  ; 
joint,  to  prevent  crowding  of 
bills  to  the  end  of  the  session, 
51,  52  ;  suspension  of  joint,  51- 
52. 

Russia,  nomination  of  Short  as 
minister  to,  no;  treaty  with, 
153- 

SALARY.     See  Senators. 
Secrecy,   of   legislative   business, 

98  ;  of  executive  business,  98- 

99  ;    removal   of  injunction   of, 
101  ;    rule    imposing   a  penalty 
for  violation   of,    102-103  ;  rule 
imposing,  on  treaties,  135-136. 

Secret  Sessions,  38-40,  98-103, 
JSS-JS6.  I7o-i7it  J73  J  reasons 
for,  suggested  by  Washington, 
39  ;  objections  to,  39-40  ;  jeal- 
ousies of  the  senate,  on  account 
of,  40 ;  abolition  of,  in  legisla- 
tive session,  40,  83,  99  ;  useless- 
ness  of,  101-102,  136  ;  arguments 
for  the  abolition  of,  103,  136. 

Secretary  of  the  senate,  tenure 
of  office  of,  25. 

Secretaries,  relation  of,  to  the  sen- 
ate, in  appointments,  114. 

Sedgwick,  Senator,  on  the  propri- 
ety of  a  committee  waiting 
upon  the  president,  107. 

Senate,  formation  of  the,  in  the 
convention,  1-14  ;  representa- 
tion in  the,  3,  7  ;  to  be  a  check 
on  the  house,  4  ;  number  of 
members  in,  6,  173  ;  powers 
given  to  the,  by  various  plans 
submitted,  7,  8,  10 ;  expected 
that  senate  sit  constantly,  8  ;  to 
choose  its  presiding  officer,  n  ; 
to  choose  president  if  no  candi- 
date has  a  majority  of  the  votes 


of  the  electors,  12  ;  objections 
to  confirmation  of  nominations 
by  the,  12  ;  opinions  as  to  the 
power  of  the,  13,  14  ;  election 
of  members  of,  and  organization 
of  the,  15-37  ;  to  judge  of  the 
qualification  and  election  of  its 
members,  16  ;  to  have  power  to 
expel  a  member,  16  ;  to  regu- 
late the  admission  of  senators 
of  the  seceded  states,  18  ;  or- 
ganization of,  20,  26  ;  presiding 
officer  of,  20-25  ;  relation  of,  to 
the  vice  president,  21  ;  preser- 
vation of  order  in  the,  21,  22, 
iyS-1?^  ;  democratic  party,  a 
majority  in  the  senate,  25,  26  ; 
committees  of  the,  26-37,  (see 
Committees)  ;  chamber  of  the, 
38,  178;  as  a  legislative  body, 
38-97 ;  secret  sessions  of  the, 
38-40,  (see  Secret  Sessions)  ; 
order  of  procedure,  48-59,  173, 
175  ;  quorum  of  the,  40-48,  (see 
Quorum);  length  of  days  session 
of  the,  48-49  ;  hour  of  assem- 
bling, 48-49  ;  adjournment  of, 
over  Thursday,  Friday,  and  Sat- 
urday, 49  ;  sessions  of  the,  on 
Sunday,  49  ;  evening  sessions, 
49,  50  ;  crowding  of  business  to 
the  end  of  the  session,  49-52  ; 
disorder  in  the,  at  the  close  of  a 
session,  53  ;  morning  hour  of 
the,  53-54  ;  limitations  of  de- 
bate, 59-68,  (see  Debate)  ;  all 
night  sessions  of  the,  67  ;  popu- 
lar disapproval  of  the  action 
of  the,  67  ;  appropriation  bills 
in  the,  68-80,  (see  Appropriation 
bills)  ;  party  influence  in  the, 
80-85,  (see  Parties)  ;  relation  of 
the  president  and  senate  in  leg- 
islation, 85-92  ;  relation  of  the 
senate  and  house  in  legislation, 
92-97  ;  aristocratic  tendencies 
of  the  early  senate,  92  ;  assump- 
tions of  superiority,  92-93  ; 
communication  with  the  house, 
92-93  ;  independence  of  the 
house,  93-94  ;  number  of  bills 
introduced  in  the,  95-96  ;  im- 
portance of  measures  introduced 
by  the,  97,  176  ;  as  an  execu- 
tive body.  98-158  ;  secret  ses- 
sions on  executive  business,  98- 
103  ;  decision  of  the,  on  its 
right  to  publish  confiden- 
tial communications  of  the 


Index. 


195 


president,  100  ;  share  of,  in  ap- 
pointments, 104-135,  (see  Ap- 
pointments) ;  removals,  122-135, 
(see  Removals  and  Tenure  of 
Office  Acts)  ;  treaties,  135-158, 
(see  Treaties)  ;  judicial  func- 
tions of  the,  159-172  ;  jurisdic- 
tion of  the,  in  impeachments, 
159-160;  organization  of,  as  court 
for  the  trial  of  impeachments, 
168-169,  (see  Impeachments)  ; 
importance  of  the,  173,  176,  177; 
reports  of  the  proceedings  of,  in 
the  papers  of  the  day.  173  ;  called 
41  The  Rich  Man's  Club  ",  175; 
debate  in  the,  175,  176,  178  ;  de- 
corum and  dignity  of  the,  176- 
177  ;  importance  of  a  seat  in 
the,  173-174,  177,  180  ;  charac- 
ter of,  177,  178  ;  resemblance 
of,  to  the  house,  178.  See  Rules, 
Officers,  Adjournment,  Clock, 
Bills. 

Senators,  election  of,  2,  19,  20  ;  in- 
fluence of  party  in  the  election 
of,  18,  19,  80;  terms  of,  pro- 
posed in  the  convention,  4,  5  ; 
terms  of  state,  5  ;  of,  appointed 
by  the  governor,  16 ;  attempts 
to  shorten  the  term  of,  85  ;  num- 
ber of  years  citizenship  required, 
4,  5  ;  age  qualification,  5  ;  resi- 
dence at  the  capitol,  5,  14 ;  ro- 
tation of,  5  ;  property  qualifica- 
tion, 5  ;  to  vote  per  capita,  6  ; 
salary  of,  6,  6,  93  ;  deduction 
from  salary  of,  for  absence,  43- 
44  ;  fear  that  senators  form  an 
aristocracy,  14 ;  re-election  of, 
14;  character  of,  14,  174,  177, 
178,  180;  number  of,  expelled, 
1 6  ;  appointment  of,  by  the  gov- 
ernor, 16,  17  ;  of  the  seceded 
states,  1 8  ;  effects  of  manner  of 
choosing  senators,  18;  resigna- 
tion of  a,  of  Nebraska,  19;  cor- 
ruption of,  19-20,  166.  175,  179- 
180  ;  calling  of,  to  order,  21-22  ; 
representation  of,  on  the  com- 
mittees, 33  ;  number  of  commit- 
tees on  which  a,  usually  serves, 
34  ;  seating  of,  38  ;  attendance 
of,  41-42,  43,  48,  176;  punish- 
ment for  non  attendance,  176; 
rule  requiring,  to  vote,  46 ;  at- 
tempts to  compel,  to  vote,  46- 
47  ;  refusal  of,  to  vote,  67  ;  ab- 
senting of  themselves  by,  to 
escape  the  responsibility  of  a 


vote,  48;  time  at  which  term 
expires,  52-53  ;  scramble  for  the 
floor,  53 ;  attempts  to  obtain 
power  to  recall,  85  ;  reference 
to,  in  the  minutes,  92  ;  rule  im- 
posing penalty  for  the  violation 
of  secrecy  by,  101-102  ;  influence 
of,  on  nominations,  108,  no, 
111-113;  time  of,  occupied  by 
the  distribution  of  patronage, 
113;  relief  afforded  to,  by  the 
civil  service  reform,  116  ;  a 
civil  officer,  amenable  to  im- 
peachment, 1 60  ;  number  of, 
165  ;  resignation  of,  to  become 
mayors,  174;  election  of,  as 
representatives,  174  ;  wealth  of, 
I74~I75)  180 ;  recruited  from 
governors  and  representatives, 
180.  See  Instructions. 
Sergeant-at-Arms,  25. 

;  Sessions,  length  of  days,  48  ;  in 
the  evening,  49,  50 ;  of  four 
days,  66. 

'  Seward,  William  H.,  resignation 
of,  as  secretary  of  state,  82. 

!  Sherman,  Roger,  compromise  pro- 
posed by,  3,  4. 

Sherman,  John,  on  the  reasons 
for  the  increase  of  appropriation 
bills  in  the  senate,  75  ;  on  gen- 
eral legislation  on  appropriation 
bills,  78  ;  on  secret  sessions,  103. 
Sherman  act,  bill  for  the  repeal 
of  the  purchasing  clause  of  the, 
66-67. 

j  Short,  rejection  of  nomination  of, 
1 08,  no. 

!  Slavery,  importance  of  the  ques- 
tion  of,  176. 

I  Smith,  Robert,  nomination  of,  for 
the  cabinet,  121. 

!  Spain,  attempt  of  Blount  to  organ- 
ize an  expedition  to  conquer  the 
territories  of,  159. 
Speaker  of  the  house,  to  be  a 
member  of  the  president's  coun- 
cil, 22  ;  in  the  succession  to  the 
presidency,  23. 

Special  agents,  use   of,    117-118  ; 
appointment    of,    to    negotiate 
treaties,  143. 
Special    orders,    55-56 ;    devoting 

an  entire  session  to,  56. 
Stanton,  removal  of,  from  office, 
130,    164,   165 ;    position  of,    on 
the  tenure  of  office  bill  of  1867, 
130. 
States,  representation   of  the,  3  ; 


196 


Index. 


length  of  term  of  senators  of  the,  f 
5  ;  provision  of  the  constitutions  j 
of  the,  for  an  executive  council, 
12  ;    election  of  the  executives 
of  the,  12. 

States  Rights  Party,  opposed  a 
long  term  for  senators,  5,  6  ;  op- 
posed voting  per  capita^  and 
payment  of  senators  by  the  na- 
tion, 6. 

Stenographer,  admission  of,  to  the 
floor  of  the  senate,  40  ;  during 
the  trial  of  impeachments,  171. 

Strange,  Senator  of  North  Caroli- 
na, resignation  of,  84. 

Story,  Joseph,  on  the  right  of  the 
governor  in  the  appointment  of  j 
senators,  17  ;  on  party  influences  | 
in  the  senate,  82  ;  on  the  power 
of  the   senate   in    nominations, 
ii  ;  on  the  character  of  senators, 
174  ;  on  the  importance  of  the 
senate,  177. 

Southard,  Samuel,  appointments 
by,  to  fill  the  chair,  24. 

Sumner,  Charles,  election  of,  as 
senator,  j  9  ;  removal  of,  from 
chairmanship,  33  ;  objections  of, 
to  limiting  the  business  of  the 
session  to  a  special  subject,  56  ; 
censure  of,  by  legislature,  85  ; 
bill  of,  providing  for  civil  ser- 
vice reform,  114;  resolution  in- 
troduced by,  176. 

Supreme  Court,  decision  of,  re- 
garding the  acquisition  of  terri- 
tory, 151  ;  on  the  repeal  of  a  law, 
by  treaty  stipulations,  151. 

TAYLOR,  Zachary,  proposal  to  ask, 
for  reason  of  a  removal,  127. 

Taylor,  Senator,  on  the  corruption 
of  congress  and  the  president, 

175- 

Tazewell,  Senator,  on  appoint- 
ments to  original  statutory  va- 
cancies, 119. 

Tenure  of  Office  Act  of  1820,  123- 
124;  effect  of,  on  the  power  of 
the  senate,  124  ;  motions  for  the 
repeal  of,  124-125  ;  repeal  of,  by 
the  senate,  127. 

Tenure  of  Office  Act  of  1867,  128- 
130;  effect  of,  128,  135;  repeal 
of  131-135  ;  charge  of  violation 
of,  164. 

Texas,  annexation  of,  151-152. 

Times,  New  York,   on  usefulness 


of  secret  sessions,  102  ;  quota- 
tion from,  1 20. 

Thomas,  appointment  of,  as  sec- 
retary ad  interim,  164,  165  ; 
charge  of  conspiracy  with  the 
president,  164,  165. 

Treasury,  Secretary  of  the,  duties 
of,  toward  congress,  88  ;  impor- 
tance of,  89  ;  influence  of,  90 ; 
annual  reports  of,  90. 

Treaties,  plan  of  Hamilton  for,  7  ; 
proposal  to  give  to  the  senate 
the  power  to  negotiate,  8  ;  pow- 
er to  negotiate,  given  to  the 
president  and  two-thirds  of  the 
senate,  8  ;  rule  imposing  secrecy 
on,  99  ;  removal  of  injunction  of 
secrecy  from,  101,  135-158;  se- 
crecy on  treaties,  135  ;  manner 
of  framing,  136-140  ;  consulta- 
tion of  the  senate  prior  to  the 
negotiation  of,  139-143  ;  appoint- 
ment of  special  agents  to  nego- 
tiate, 143-144  ;  influence  of  the 
senate  in  the  negotiation  of,  144- 
T45)  T53  J  abrogation  of,  146-147  ; 
share  of  the  house  in,  148-151, 
157-158  ;  repeal  of  laws  by  stip- 
ulations of  a,  151  ;  acquisition  of 
territory  by,  151-155  ;  previous 
appropriation  for  the  negotiation 
of  a,  152-153  ;  commercial  regu- 
lations in,  155-157  ;  regulation 
of  the  tariff  by,  155-157  ;  with 
the  Indians,  considered  in  open 
session,  136;  ratification  of  In- 
dian, 139-140  ;  share  of  house  in 
Indian,  148-149  ;  law  forbidding 
the  negotiation  of  Indian,  149. 

Trumbull,  Senator,  on  the  use  of 
conference  committees,  37  ;  on 
the  object  of  the  rule  limiting 
debate,  62. 

Tyler,  John,  use  of  veto  by,  87  ;  re- 
nominations  made  by,  in  ;  re- 
fusal of  the  senate  to  act  on  nom- 
inations of,  121  ;  proposal  to  ask, 
for  reasons  of  a  removal,  127  ; 
message  of,  on  a  treaty,  155. 

UNANIMOUS  consent,  use  of,  to 
limit  debate,  62  ;  ease  of  obtain- 
ing, 64  ;  refusal  of,  73. 

Upper  House,  election  of  mem- 
bers of  the,  2  ;  of  most  states, 
forbidden  to  originate  money 
bills,  7  ;  of  the  colonies,  duties 
of,  13. 


Index. 


197 


VAN  BUREX,  Martin,  143  ;  on  the 
importance  of  the  senate,  177.  | 

Vans  Murray,  nomination  of,  107.  ; 

Veto,  use  of,  to  control  legislation, 
86,  87  ;  subjects  for  which  used,  ! 
87. 

Vice  President,  objections  to,  and  j 
arguments  for  the,  presiding  in  j 
the  senate,    i  r  ;  independent  of 
the  senate,    21,  22  ;  decisions  of' 
the,  on  his  right  to  preserve  or-  : 
der,  2r,  22  ;  to   be  a  member  of; 
the  president's  council,  22  ;  in-  \ 
fluence   of,    on    legislation,  22  ; 
probable    effect   of    making,     a 
member  of  the  cabinet,  23  ;  at-  | 
tendance  of  the,   23,  28  ;  power  j 
of,  to  appoint  a  member  to  take 
the  chair,  23,   24  ;  appointment 
of  the  committees  by,  30  ;  decis- 
ions of  the,  on  the  necessity  of 
asking  for  leave  of  absence,  42  ; 
on  excusing  senators  from  vot- 
ing, 47  ;  on  the  Anthony  inle, 
63  ;  casting  vote  of  the,    13,  65, 
123  ;  titles  for  the,  92. 

Virginia,  amendment  proposed  by 
the   convention   of.    9 ;   instruc- 
tions of,  to  her  senators,  83,  85  ;  j 
motion  of  senator  from,  for  pub-  I 
lie  sessions,  83. 

Voorhees,  Senator,   on  the  influ-  J 
ence  of  the  committees,  36. 

WAR,  power  to  declare,  7,  8. 

Washington,  George,  23  ;  sugges- 
tions of,  as  to  the  reasons  for 
secret  sessions,  39  ;  manner  of 
delivering  his  annual  message, 
86  ;  suggestions  of,  on  commu- 
nications in  nominations,  104- 


105,  107  ;  power  of  the  senate  in 
appointments  under,  109  ;  posi- 
tion of,  on  appointments,  109; 
refusal  of,  to  appoint  Burr,  109- 
110;  nominations  of,  rejected, 
no;  decision  of,  on  appoint- 
ments to  original  vacancies, 
117;  attends  in  the  senate 
chamber,  137-139 ;  reasons  of, 
for  discontinuing  oral  commu- 
nications on  treaties,  139;  ex- 
pectations of,  regarding  the 
mode  of  procedure  in  framing 
treaties,  136  ;  on  mode  of  com- 
munication between  the  presi- 
dent and  senate  on  treaties,  137  ; 
consultation  of  the  senate  by, 
previous  to  the  negotiation  of 
treaties,  139;  opinion  of,  re- 
garding the  ratification  of  In- 
dian treaties,  140 ;  consultation 
of  the  house  by,  on  Indian  trea- 
ties, 148 ;  on  the  right  of  the 
house  to  deliberate  on  treaties, 
150. 

Webster,  Daniel,  on  the  character 
of  senators,  177. 

Wheaton,  Lawrence,  on  the  rights 
of  congress  in  carrying  treaties 
into  effect,  158. 

White,  Hugh  L,.,  resignation  of, 
84. 

Wilson,  James,  on  forbidding  sen- 
ators to  originate  appropriation 
bills,  7  ;  on  mode  of  appoint- 
ment prescribed  by  the  consti- 
tution, 10. 

Wilson,  Senator,  on  the  success 
of  all  night  sessions.  68. 

Works,  list  of,  cited,  181-184. 


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